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"^P|J';|so'  cases  before  the  High  Court  a 


3  1924  017  183  371 


Cornell  University 
Library 


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REPORTS  OF  CASES 


BEFORE 


THE    HIGH    COURT 


CIRCUIT  COURTS  OF  JUSTICIARY 

U  SCOTLAND, 

DURING  ' 

THE   YEARS  1848,  1849,  1850,  1851,  1852. 


BY 

JOHN   SHAW,   ESQ. 

ADVOCATE. 


EDINBURGH: 

T.  &  T.  CLARK,  LAW-BOOKSELLERS. 

LONDON :  BENNING  &  CO. 

MDCCCLIII. 


PRINTED  BV  MACPHEKSON    &  SYME,  12  ST  DAVID  STKEET,  EDINBUKGH. 


JUDGES 


OF  THE 


COURT    OF   JUSTICIARY 

DURING  THE  PERIOD  OF  THESE  REPORTS. 


LOED  JUSTICE-GENERAL. 
1841.  The  Right  Honourable  DAVID  BOYLE. 

LORD  JUSTICE-CLERK. 

1841.  The  Right  Honoheable  JOHN  HOPE. 

LORDS  COMMISSIONERS  OF  JUSTICIARY. 
1824.  JOSHUA  HENRY  MACKENZIE,  LORD  MACKENZIE. 
1829    Sia  JAMES  WELLWOOD  MONCREIFF,  LORD  MONCREIFF. 
1830.  JOHN  HAY  FORBES,  LORD  MEDWYN. 
18,37.  HENRY  COCKBCRN,  LORD  COCKBURN. 
1843.  ALEXANDER  WOOD,  LORD  WOOD. 

1849.  JAMES  IVORY,  LORD  IVORY. 

1850.  DUNCAN  M'NEILL,  LORD  COLONSAY. 
1861.  JOHN  COWAN,  LORD  COWAN. 

1852.  ADAM  ANDERSON,  LORD  ANDERSON. 

LORD  ADVOCATE. 
1846.  ANDREW  RUTHERFURD. 

1851.  JAMES  MONCREIFF. 

1842.  DUNCAN  M'NEILL. 

1852.  ADAM  ANDERSON. 
1852.  JOHN  INGLIS. 

SOLICITOR-GENERAL. 

1846.  THOMAS  MAITLAND. 

1850.  JAMES  MONCREIFF. 

1851.  JOHN  COWAN. 

1851.  GEORGE  DBAS. 
1842.  ADAM  ANDERSON. 

1852.  JOHN  INGLIS. 
1852.  CHARLES  NEAVES. 


IV 


1841.  DAVID  MILNE. 
1843.  DAVID  MURE. 

1845.  CHARLES  BAILLIE. 

1846.  GEORGE  DBAS.- 

1846.  JAMES  CRAUFURD. 

1847.  E.  F.  MAITLAND. 


ADVOCATES  DEPUTE. 

1847.  J.   M.   BELL. 

1849.  GEORGE  YOUNG. 

1850.  THOMAS  CLEGHORN. 

1851.  G.  DINGWALL  FORDYCE. 
1851.   ANDREW  R.  CLARK. 


1841. 
1847. 


CROWN  AGENT. 
JAMES  TYTLER,  W.  S. 
JOHN  CLERK  BRODIE,  W. 


INDEX    OF    NAMES. 


Balfour,  David,  High  Court,  July  20,  1850, 

Barr,  John,  Ayr,  May  1, 18S0, 

Baxter,  Gilea  v.,  High  Court,  Mar.  IS,  1849, 

Beattie,  Ebenezer,  Dumfries,  April  28,  18S0, 

Bell,  David,  Perth,  April  25,  1 8S0, 

Bennison,  William,  High  Court,  Aug.  1, 1850, 

Blytha  «.  M'Bain,  High  Court,  Feb.  20,  1862,       . 

Blyth,  Isabella,  Perth,  April  29,  1852,      . 

Bruce  v.  Duncan  and  M'Lean,  Perth,  Oct.  13,  1848, 

Burnet,  Bums  «.,  High  Court,  June  12,  J  850, 

Burnett,  Robina,  and  Others,  High  Court,  Nov.  17,  1861, 

Burnett,  Etch  and  Golf  d..  High  Court,  Mar.  16, 1849,    . 

Bums  V.  Moxey,  High  Court,  Feb.  21,  1850, 

Bums  ».  Bumet,  High  Court,  June  12, 1850, 

Cameron,  William,  Glasgow,  Dec.  22,  1861, 

Cameron,  John,  High  Court,  Jan.  31,  1860, 

Chapman  v.  Colville,  High  Court,  Dec.  14, 1850, 

Clark,  William,  and  Janet  Gray  or.  Thomson,  Aberdeen, 

Sept.  20,  1849,        ..... 
Chambers,  Agnes,  and  Helen  Henderson,  High  Court,  July  26, 

1849,  ...... 

Chisholm,  James,  lEgh  Court,  July  9, 1849, 

Colville,  Chapman  v..  High  Court,  Dec.  14,  I860,  .  , 

Connor, Dennis,  &  Edward  Morrison,  Glasgow,  Sept.  23, 1848, 

Craig  V.  Steel,  High  Court,  Dec.  20,  1848, 

Crawford,  Alex.  Fraser,  High  Court,  Jan.  6,  &  Feb.  11,  1850, 

Crawford  and  Dill,  Simpson  v.,  High  Court,  Dec.  22, 1861, 

Cross,  Phillips  and  Ford  v.,  High  Court,  Dec.  20,  1848, 

Crossgrove  or  Bradley,  Catherine,  High  Court,  Feb.  6,  I860, 

Cumming,  James,  and  Others,  High  Court,  Nov.  7,  1848, 

Daly,  Helen,  and  Helen  Kirk  or  James,  Dumfries,  April  27, 

1850, 

Dinwidie  v.  Knox,  Stirling,  April  1 7,  1849, 
Dowd,  Theodore,  and  Darby  Furie,  High  Court,  June  8,  1862, 
Duncan  and  M'Lean,  Bruce  v.,  Perth,  Oct.  13, 1848, 
Duncan,  Chrisjaan,  Aberdeen,  April  24,  1849, 

Duncan,  Walter,  Perth,  Sept.  26,  1849, 


PAOB 

Culpable  Neglect  of  Duty,  377 


Rape,  &e. 

362 

Suspension, 

203 

Theft,  &c. 

356 

Night  Poaching, 

348 

Murder, 

453 

Suspension, 

654 

Murder, 

567 

Appeal, 

12 

Appeal, 

373 

Theft, 

497 

Suspension, 

201 

Suspension, 

330 

Appeal, 

373 

Theft, 

526 

Murder,     . 

296 

Suspension, 

466 

>  Murder, 

267 

Robbery  or  The 

sft,      .        ?52 

Falsehood,  Frai 

id,  &c.        241 

Suspension, 

466 

Rape, 

5 

Suspension, 

148 

Threatening  Le 

tters,  &e.   309 

Suspension, 

623 

Suspension,  ' 

139 

Theft, 

301 

5  Contravention 
I      12th  Vict.  c. 

of  llth& 

12,     .          17 

Theft,  &c. 


Appeal,  .        .        216 

Theft,        ...        676 
Appeal,  .        .  12 

Theft  by  Housebreaking,  225 
I  Breach  of  Trust  and  Em- 
(     bezzleraent,  .        270 


354 


INDEX  OF  NAMES. 


Duncan,   William,  and   Alexander  Gumming,  High  Court,    )  „  . 

March  n,18S0, J  * orgery,  »c. 

I  Appeal, 


Dundee  and  Union  Whale  Fishing  Co.,  and  Mavour  and  Pa- 
ton  2,.,  Perth,  Oct.  13,  1848, 

Dutliie,  Ann,  Aberdeen,  April  24,  1 849, 

Etch  and  Golf  «.  Burnett,  High  Court,  Mar.  IS,  1849,     . 

Falconer  and  Others,  High  Court,  Jan.  26,  1852, 

Fegan,  Alexander,  &  Elizabeth  M'Kenzie  or  Hyde,  Glasgow, 

Sept.  IS,  1849,         .... 
Finnie  v.  Gilmour,  High  Court,  June  11,  IBSO, 
Flinn,  James,  and  Margaret  M'Donald,  Perth,  Oct.  12,  1848, 
Fraser,  Daniel,  High  Court,  June  3,  IBSO, 

Galloway,  Peter,  High  Court,  Feb.  24,  18S1 , 

Glass,  Methvent).,  High  Court,  Dec.  20,  1848,      . 

Gibson,  Jas.,  &  Malcolm  M'Millan,  High  Court,  Mar.  12,1849, 

Giles  V.  Baxter,  High  Court,  Mar.  16,  1849, 

Gilmour,  Finnie  v.,  High  Court,  June  11,  1850, 

Graham  v.  Moxey,  High  Court,  Feb.  17,  1849, 

Hall,  James,  and  Others,  High  Court,  July  25,  1849, 
Hamilton,  John,  and  Mary  Garden  or  Hamilton,  High  Court, 

Jan.  2,  1849,  .  .  .  • 

Henderson  v.  M'Auley  and  Go.,  Glasgow,  April  26, 1849, 
Henderson,  Thomas,  George  Langlands,  and  John  Williams, 

High  Court,  Aug.  29,  and  30, 1 850,        .  .         1 

Hendrie,  Wyher  and  Others  v.,  Glasgow,  Sept.  17,  1849, 
Hogg,  Thomas,  High  Court,  June  9, 1851, 
Howden,  George,  Jedburgh,  April  8, 18S0, 
Home,  Watt  v.,  High  Court,  Dec.  8,^1851, 
Hoyes,  James,  High  CoHrfr,  Dec.  11, 1848, 

Jameson  v.  Palmer,  High  Court,  June  2,  1849, 

Kennedy,  E.  of  Selkirk,  v.,  High  Court,  Dec.  14,  18S0, 
kiellor,  Jean,  High  Cotirt,  Nov.  20,  1850, 
Kilgour,  Joseph,  High  Court,  Dec.  8, 1851, 
Kljppen,  George,  High  Court,  Nov.  6,  1849, 
Knox,  Dinwidie  v.,  Stirling,  April  17, 1849, 

Launders  v.  Mann  and  Co.,  Perth,  April  24, 18S0, 

Lock,  J.  and  P.  Doolen  v.  Steel,  High  Court,  Feb.  6,  1850. 

Lockie  v.  M'Whirter,  High  Court,  Feb.  15,  1849, 

Lyon  and  Main,  Macdonald  v..  High  Court,  Dec.  8,  1851   ' 

M'Auley  and  Co.  Henderson  v.,  Glasgow,  April  26,  1849, 

Mackay,  Meekison  and  Tutor  v.,  High  Court,  Feb.  13   1849 

M'Bain,  BIyths  v.,  High  Court,  Feb.  20,  1862, 

Mackean  «.  Wilson,  High  Court,  Deo.  9,  1 848, 

Macpherson,  Welsh  v.,  Inverness,  April  19,  1850, 

Macdonald  v.  Lyon  and  Main,  High  Court,  Dec.  8,  1851,  Suspension, 


i  Wanton  and  Malicious 
Mischief, 

Suspension,        .    f    . 

Bobbery,  &c.,» 
Forgery, 

Suspension, 
Culpable  Homicide, 
Theft, 

Culpable  Homicide, 

Supension, 

Theft,  &c.. 

Suspension, 

Suspension, 

Suspension, 

Falsehood,  Fraud,  &c, 

Reset  of  Theft, 

Appeal, 

Culpable  Homicide,  &c. 

Appeal, 
Murder, 
Forgery, 
Suspension, 
Theft,  &c.'      . 

Suspension, 

Suspension, 

ConcealmentofPregnaneyj 
Theft,  &c. 

Falsehood,  Fraud,  &c. 
Appeal, 

Appeal, 
Supension, 
Appeal, 
Suspension, 

Appeal, 
Suspension, 
Suspension, 
Suspension, 


PAGB 

335 

15 

227 

201 

546 
261 

368 

9 

365 

470 
146 
191 
203 
368 
168 

254 

149 

219 

394 

266 
484 
351 
619 
134 

238 

463 
,S76 
501 
276 
215 

347 
307 
161 
516 

2)9 
169 
654 
1.S2 
345 
516 


INDKX  OP  NAMES. 


M'Gall,  William,  High  Court,  March  13,  1849, 

J|:'Neillage,  Hugh,  Inrerary,  Sept.  18,  1850, 
M'Millan,  Margaret,  High  Court,  Jan.  6,  1851, 
Manh  and  Co.,  Launders  v.,  Perth,  April  24,  186Q,    ' 
M'Walter  or  Murray,  Elizaheth,  High  Court,  Feb.  2,  1862, 
Marshall  v.  Turner,  Glasgow,  April  26, 1849, 
Mathison  v.  Monkland  Iron  &  Steel  Co.,  Glasgow,  Sept.  17,1849, 
Matson,  Alexander,  High  Court,  Nov.  27,  1 849, 
Mavour  and  Paton  v.  Dundee  and  Union  Whale  Fishing  Co.,   J 
Perth,  Oct.  13,  1848,  -  .  .  .         i 

Meekison  and  Tutor  v.  Mackay,  High  Court,  Feb.  1 S,  1 849, 
Menzies,  Alexander  James  Petty,  High  Court,  Feb.  5,  1849, 
Methven  v.  Glass,  High  Court,  Dec.  20, 1848, 
Middlemiss  v.  D'Eresby,  High  Court,  March  16,  1852, 
Miller,  Arch.,  &  Susan  Brown  or  Miller,  High  Court,  Jan.  3, 1850, 
Mitchell,  Hannah,  High  Court,  Jan.  4, 1850, 
M'Kichen  or  Charters  v.  Moir,  Dumfries,  April  19,  1 849, 
Monkland  Iron  &  Steel  Co.,  Mathison?).,  Glasgow,  Sept.  17, 1849, 
Mgoney,  John,  High  Court,  Nov.  17,  1851, 
Mooney,  John,  High  Court,  Dec.  8,  1851, 
Moxey,  Graham  v.,  High  Court,  Feb.  17, 1849, 
Moxey,  Telfer  v.,  High  Court,  June  2,  1849, 
Moxey,  Bums  «.,  High  Court,  Feb.  21, 1860, 
Moxey,  Sleigh  and  Russell  v.,  High  Court,  June  12,  18S0, 
Murdoch,  John  Elder,  Perth,  May  2,  1849,       . 
Muir,  M'Kichen  or  Charters  ».,  Dumfries,  April  19,  1 849, 
M'Whirter,  Lockip  v.,  High  Court.  Feb.  16,  1849, 

O'Neill,  John,  High  Court,  June  2,  1851, 

Park  and  Others  v.  Earl  of  Stair,  High  Court,  Jan.  1 2,  )  862, 

Paterson,  John,  and  David  Ritchie,  Stirling,  Sept.  7, 1848, 

Peanver,  Peter,  High  Court,  Nov.  1 6,  1850, 

Phillips  and  Ford  ».  Cross,  High  Court,  Dec.  20,  1848, 

Pilmer,  Ritchie  v.,  High  Court,  Dec.  20,  1848, 

Pihner,  Jameson  ii:,  High  Court,  June  2, 1 849, 

Purves,  James,  High  Court,  Nov.  20,  1848, 

Pyott,  G.  B.  and  W.  B.,  High  Court,  June  16,  1851,         . 

Quillichan,  Patrick,  High  Court,  Jan.  24, 1852, 

Rait,  WilUam,  High  Court,  Nov.  1 7, 1 85 1, 
Reid,  Veitch  and  Others  v..  High  Court,  June,  2,  1 849, 
Ritchie  v.  Pilmer,  High  Court,  Dec.  20,  1848, 
Robertson,  James,  Perth,  July  28,  1850, 
Robertson,  John  Gordon,  High  Court,  Feb.  19,  1849, 

Simpson  v.  Crawford  and  Dill,  High  Court,  Deo.  22,  1851, 

Saffley,  Threshie  v.,  Dumfries,  April  1 9, 1 852, 

Selkirk,  Earl  of,!),  Kennedy,  High  Court,  Dec.  14,  1850, 

Sellers,  Daniel,  Inverary,  Sept.  24, 1851, 

Sleigh  and  Russell  v.  Moxey, High  Court,  June  12,  I860, 

Smith  ».  Skinner,  Dumfries,  April  8, 1851, 


;  Embezzlement  and  Breach 


of  Trust, 

194 

Cattle  Stealing, 

459 

Culpable  Homicide, 

468 

Appeal, 

.        347 

Swindling, 

552 

Appeal, 

222 

Appeal, 

266 

Murder, 

127 

Appeal, 

16 

Suspension, 

169 

Forgery,  &c.      , 

153 

Suspension, 

146 

Suspension, 

■      ^S7 

Forgery,  &c. 

288 

Murder,  &c. 

293 

Appeal, 

223 

Appeal, 

266 

Theft, 

496 

Base  Coin, 

$09 

Suspension, 

168 

Suspension, 

231 

Suspension, 

330 

Suspension, 

369 

Wilful  Damage, 

329 

Appeal, 

223 

Appeal, 

161 

Theft, 

483 

Suspension, 

532 

Robbery, 

! 

Murder, 

462 

Suspension, 

139 

Suspension, 

■         142 

Suspension, 

238 

Bigamy, , 

■  .  m 

Fire-raising, 

.         490 

Bigamy, 

537 

Falsehood,  &c. 

500 

Suspension, 

236 

Suspension, 

142 

Murder, 

447 

Theft,  &o. 

186 

Suspension, 

623 

Appeal, 

563 

Suspension, 

463 

Note,  648 

Suspension, 

369 

Appeal, 

481 

VIU 


INDEX  OF  NAMES. 


Stair,  Earl  of.  Park  and  Others  v..  High  Court,  Jaa.  12,  18S2,j 
Steel  V.  Craig,  High  Court,  Deo.  20,  1848, 
Steel,  Lock,  J.  and  P.  Doolen  v..  High  Court,  Feb.  6,  1850, 
Stevens,  John,  Glasgow,  Jan.  11, 1850, 

Sutherland,  Mai'y,  and  Isabella  Gibson  or  Murray,  High  Court, 
Dec.  11, 1848,         .... 

Tait,  Jacob,  and  John  Taylor,  Jedburgh,  April  16,  1851, 
Taylor,  John,  Jacob  Tait,  Jedburgh,  April  16, 1851, 
Telfer  v.  Moxey,  High  Court,  June  2,  1849, 
Thomson,  John,  High  Court,  Dec.  4,  1848, 
Threshie  v.  Saffley,  Dumfries,  April  19,  1852, 
Turner,  Marshall  ».,  Glasgow,  April  26,  1849, 

Vance,  Robert,  Glasgow,  March  23,  1849, 

Veifoh  and  Others  s.Reid,  High  Court,  June  2,  1849, 

Walker,  James,  Wilson  and  Others,  Glasgow,  Jan.  14,  1850, 

Watson,  Wilson  ().,  Perth,  Oct.  1,  1851, 

Watt  V.  Home,  High  Court,  Dec.  8,  1851, 

Welsh  V.  Macpherson,  Inverness,  April  19,  1860, 

Wilson,  Mackean  «.,  High  Court,  Dec,  9,  1848, 

Wilson  «i.  Wataon,Perth,  Oct.  1,1851,  .  .        ' 

Wyher  and  Others  J".  Hendrie,  Glasgow,  Sept.  17,  1849, 


Suspension, 

532 

Suspension, 

148 

Appeal 

307 

Murder, 

287 

Con.  2d  and  3d  Will.  IV. 

u.  36, 

1.3S 

Deforcement, 

475 

Deforcement, 

475 

Suspension, 

231 

Con.  10th  Geo.  IV.  c. 

48,     129 

Appeal, 

563 

Appeal, 

222 

Culpable  Homicide, 

210 

Suspension, 

236 

NoU,  648 

Appeal, 

493 

Suspension, 

619 

Appeal, 

345 

Suspension, 

132 

Appeal, 

493 

Appeal, 

266 

Yates  and  Parkes,  Glasgow,  Dec.  24,  1851, 


Rape,  &c. 


528 


REPORTS,  &c. 


WEST    CIRCUIT. 

STIRLING. 

Autumn  1848. 

Judges — Lords  Moncreiff  and  Cockburn. 

Her  Majesty's  Advocate — Deas  A.D. 

AGAINST 

John  Paterson  and  Datid  Ritchie — Grahame. 

Indictment — Locus — Variance. — Held  that  there  is  no  land  in 
Scotland  truly  extra-parochial,  and  that  in  the  case  of  a  peculiar 
jurisdiction  it  is  sufficient  to  lihelthe  offence  alternatively,  as  having 
been  committed  within  one  or  other  of  the  adjacent  parishes. 
Question,  whether  it  is  a  fatal  objection  when  a  wrong  parish  is 
named  in  the  libel,  if  it  be  shewn  in  proof,  that  the  locus  mentioned 
is  situate  in  another  parish. 

John  Pateeson  and  David  Ritchie  were  charged  jo^a'pa- 
with  Robbery ;  as  also  Assault ;  as  also  with  Theft :        teraon  and 

Ritchie. 

In  so  far  as  (1.),  on  the  10th  day  of  March  1848,  or  on  one  or    Stirling. 

other  of  the  days  of  that  month,  or  of  February  immediately  preceding,     Sept.  7. 

or  of  April  immediately  following,  on  or  near  the  public  road  leading 1_ 

from  Stirling  to  Dumbarton,  and  at  or  near  a  part  of  the  said  public  I'otbery. 
road  situated  in  the  parish  of  Saint  Ninians,  or  parish  of  Stirling,  and 
county  of  Stirling,  and  about  one  hundred  and  fifty  yards,  or  thereby, 
east  from  the  bye-road  leading  from  the  said  public  road  to  the  King's 
Park  Quarry,  or  at  or  near  some  other  part  of  the  said  public  road 
situated  in  the  said  parishes,  or  one  or  other  of  them,  to  the  prosecutor 
unknown,  you  the  said  John  Paterson  and  David  Ritchie  did,  both  and 
each,  or  one  or  other  of  you,  wickedly  and  feloniously,  attack  and  as- 

A 


2  CASES  BEFORE  THE  HIGH  COURT 

No.  1.     sault  John  Johnstone,  a  shoemaker,  then  and  now  or  lately  residing 
terron^n'd  ^*  °^  "^^''  TouCh,  in  the  parish  of  Saint  Ninians,  and  county  aforesaid, 
David      and  did  seize  hold  of  him  by  the  shoulders,  and  did  kick  him  upon  or 
^'*"'''^-    near  the  feet  and  legs,  and  did  thereby,  or  otherwise,  bring  him  down 
Stirling,     upon  his  back  to  the  ground,  and  did  lie  above  him,  and  did  place  your 
^ms.'      ^^^^  °^  ^^''^^  "PO"!  ^^^  mouth,  and  did  rifle  his  pockets ;  and  you  did, 
■g^y^^J^      both  and  each,  or  one  or  other  of  you,  then  and  there,  wickedly  and 
^'^^'  feloniously,  and  by  force  and  violence,  take  from  his  pockets  or  person, 
and  did  fob  him  of,  a  halfpenny  copper  piece,  the  property,  or  in  the 
lawful  possession,  of  the  said  John  Johnstone  :  Likeas  (2.)  on  the 
14th  day  of  April  1848,  or  on  one  or  other  of  the  days  of  that  month, 
or  of  March  immediately  preceding,  or  of  May  immediately  following, 
on  or  near  the  public  road  leading  between  Stirling  and  Callander, 
and  at  or  near  a  part  of  the  said  road  situated  in  the  parish  of  Saint 
■  Ninians,  and  county  aforesaid,  and  one  hundred  and  sixty-eight  yards 
or  thereby  to  the  eastward  of  Kildean  Toil-Bar,  in  the  parish  of  Saint 
Ninians,  and  county  aforesaid,  now  or  lately  occupied  by  John  John- 
ston, toll-keeper,  now  or  lately  residing  there,  or  at  or  near  some  other 
part  of  the  said  public  road  situated  in  the  said  parish  and  county,  to 
the  prosecutor  unknown,  you   the   said  John  Paterson  and  David 
Ritchie  did,  both  and  each,  or  one  or  othet  of  you,  wickedly  and  felo- 
niously, attack  and  assault  Thomas  Bilsland,  a  brick- moulder,  then 
and  now  or  lately  residing  in  or  near  Cowan  Street,  in  or  near  Stirling, 
and  did,  with  your  fist  or  fists,  strike  him  a  blow  or  blows  on  or  near 
his  face,  and  did  throw  or  force  him  down  upon  his  face  to  the  ground, 
and  did  repeately  strike  him  on  or  near  the  back  part  of  his  head  while 
he  was  lying  on  the  ground,  and  did  seize  him  by  the  neck  or  throat, 
and  endeavour  to  choke'  him,  and  did  thrust  your  hand  or  hands,  or 
part  thereof,  into  his  mouth,  and  did  tear  open  his  coat  or  great-coat, 
and  did  search  one  or  more  of  his  pockets,  and  did  otherwise  maltreat 
and  abuse  him ;  and  all  this,  both  and  each,  or  one  or  other  of  you, 
did,  with  intent  to  rob  the  said  Thomas  Bilsland :  Likeas  (3.)  on  the 
night  of  the  14th,  or  morning  of  the  15th,  day  of  April  1848,  or  on 
one  or  other  of  the  days  of  that  month,  or  of  March  immediately  pre- 
ceding, or  of  May  immediately  following,  on  or  near  Broad  Street  of 
Stirling,  and  at  or  near  that  part  of  sajd  street  which  is  in  front  of,  or 
near  to,  the  shop  in  said  street  then  and  now  or  lately  occupied  by 
William  Peddie,  then  and  now  or  la,tely  bookseller  there,  you  the  said 
David  Eitchie  did,  wickedly  and  feloniously,  attack  and  assault  Mar- 
garet Clark,  then  or  lately  residing  with  James  Roberts,  in  or  near 
Jail  Wynd  of  Stirling,  and  now  or  lately  residing  in  or  near  High 
Street  of  Linlithgow,  with  her  father,  James  Clark,  shoemaker,  and  did 
throw  or  force  her  down  upon  her  back  on  the  ground,  and  did  forcibly 
thrust  your  hand  into  the  breast  or  front  part  of  her  dress ;  and  you 
the  said  David  Ritchie  did,  then  and  there,  wickedly  and  feloniously, 
and  by  force  and  violence,  take  from  her  person,  and  did  rob  her  of. 


Robbery. 


AND  CIRCUIT  COUETS  OF  JUSTICIARY.  3 

a  small  bag  or  purse,  sevenpence  sterling,  or  thereby,  in  silver  money,  No.  1. 
and  fourpence  sterling,  or  thereby,  in  copper  money,  the  property,  or  ^°^      , 

in  the  lawful  possessiouj  of  the  said  Margaret  Clark  :    Or  otherwise,  David 

time  and  place  last  above  libelled,  you  the  said  David  Eitchie  did,  ^'*°^'^- 

wickedly  and  feloniously,  steal  and  theftuously  away  take  from,  or  Stirling. 

from  near  the  person  of  the  said  Margaret  Clark,  the  aforesaid  bag  or  i848 
purse,  sevenpence  sterling,  or  thereby,  in  silver  money,  and  fourpence 
sterling,  or  thereby,  in  copper  money,  the  property,  or  in  the  lawful 
possession,  of  the  said  Margaret  Clark. 

In  the  course  of  the  trial,  it  appeared  that  the  locus 
stated  in  the  libel,  was  situated  neither  in  the  parish 
of  St  Ninians,  nor  in  that  of  Stirling,  but  within  the 
extra-parochial  jurisdiction  or  district  of  the  constabulary 
of  Stirling  Castle. 

In  respect  of  the  second  charge,  it  appeared  that  the 
locus,  although  correctly  described  otherwise,  was  situate 
not  in  the  parish  of  St  Ninians,  but  in  that  of  Stirling. 

Geahame  for  the  pannels,  in  addressing  the  Jury, 
argued  in  respect  of  the  first  and  second  charges,  there 
was  a  misdescription  of  the  locus  in  the  indictment.  He 
admitted  that  it  would  have  been  unnecessary  for  the 
prosecutor  to  have  named  the  parish,  but  contended,  that 
where  a  parish  was  mentioned,  it  was  a  fatal  objection 
if  it  was  shewn  in  proof  that  the  locus  set  forth  was  not 
within  its  boundaries.  Alison,  vol.  ii.  p.  262-3,  and  cases 
there  cited,  particularly  those  of  Peter  Gordon,  Perth, 
Sept.  28.  1812,  Robert  Henning,  Aberdeen,  Sept.  1821, 
and  Thomas  M'Pherson,  Inverness,  Spring  1824. 

Lord  Moncreiff  charged  the  Jury,  that,  in  point  of 
law,  there  was  no  land  in  Scotland  that  was  extra-paro- 
chial. All  land  whatever  was  situated  in  some  parish, 
Ross  V.  Earl  of  Haddington,  3  Shaw,  115  (N.  E.  76),  and 
therefore  in  describing  the  locus  of  the  first  robbery  as 
in  the  parish  of  St  Ninians  or  parish  of  Stirling,  he  had 
given  the  correct  description,  and  there  were  no  grounds 
for  sustaining  the  objection  stated  to  that  charge.  In 
regard  to  the  argument  maintained  relative  to  the  second 
charge,  the  Jury  would  judge  whether  the  evidence  sup- 


4  CASES  BEFORE  THE  HIGH  COURT 

No.  1.    ported  the  pannel's  contention,  that  the  crime,  if  com- 

John  Pa-    '■  '^  tj       T  •     A    a 

terson  and  mitted  by  the  pannel,  of  which  they  would  also  juage, 

RiteMe.    was  perpetrated  at  a  spot  in  Stirling  parish,  instead  of 

Stirling.  St  Ninians,  as  libelled.     As  to  the  law  which  had  been 

m*8/'   quoted,  he  had  long  been  of  opinion  that  it  was  errone- 

Robbery.   ous,  and  it  was  seriously  doubted  by  some  of  the  most 

eminent  lawyers  at  the  time  when  the  leading  cases 

were  decided.     It  would  be  best  for  the  Jury  to  return 

a  verdict  with  a  special  finding  relative  to  this  point. 

The  Jury  returned  the  following  verdict : — '  The  Jury 
'  unanimously  find  both  the  pannels  guilty  as  libelled, 
'  of  the  charges  of  robbery  under  the  first  and  third 
'  charges  in  the  indictment,  and  of  the  assault  with  in- 
'  tent  to  rob  in  the  second  charge,  and  are  satisfied  as 
'  to  the  accuracy  of  the  locus  mentioned  in  the  indict- 
'  ment  where  the  second  charge  was  committed,  but  are 
'  not  prepared  to  say  in  what  parish.' 

Whereupon  it  was  objected,  that  this  amounted  to  a 
verdict  of  acquittal  on  the  second  charge,  and  the  Advo- 
cate-Depute declined  to  move  for  sentence  on  that  part 
of  the  case,  confining  himself  to  the  first  charge. 

Lord  Moncreiff  said,  he  would  have  certified  the 
point  had  the  Public  Prosecutor  moved  for  sentence. 
He  was  not  now  required  to  do  so,  but  he  would  inti- 
mate that  his  own  opinion  was  contrary  to  the  view 
taken  by  Mr  Alison,  and  pressed  by  the  pannels'  counsel. 

In  respect  of  which  verdict  of  assize,  so  far  as  regard- 
ed the  first  and  third  charges,  the  pannels  were  sen- 
tenced to  be  transported  for  the  period  of  ten  years. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY. 


GLASGOW. 


Judges — Lords  Moncreifp  and  Cockburn.  Sept.  23. 

1848. 

Her  Majesty's  Advocate — Deas  A.D. 


AGAINST 

Dennis  Connor  and  Edward  Morrison. —  W.  H.  Thornton. 

Eape — Locus — Insufficient  description. — Question,  1st,  Whether, 
in  the  particular  circumstances,  the  locus,  where  a  rape  was  said  to 
have  been  committed,  was  described  with  sufficient  accuracy. 
2d,  Whether  the  description  of  the  party  said  to  have  been  injured 
was  not  too  vague. 


Dennis  Connor  and  Edward  Morrison  were  charged    No.  2. 
with  Rape  ;  as  also,  Assault,  committed  with,  Intent  to  connor  and 
Ravish,  and  to  the  effusion  of  blood  and  injury  of  the  ^o^^on 

person  :  Glasgow. 

Sept.  23. 
1848. 
In  so  FAR  AS  (1.),  on  the  25th  day  of  August  1848,  or  on  one  or 

other  of  the  days  of  that  month,  or  of  July  immediately  proceeding,  on  A^g^idt' 
or  near  the  public  or  parish  road  commonly  called  or  known  by  the 
name  of  the  Craig  Road,  leading  from  the  farm-st§ading  of  the  lands 
or  farm  of  South  Medrox,  in  the  parish  of  New  Monkland  aforesaid, 
then  and  now  or  lately  occupied  by  William  M'Lean  senior,  then  and 
now  or  lately  residing  there,  to  or  in  the  direction  of  Cumbernauld,  in 
the  parish  of  Cumbernauld,  and  county  of  Dumbarton,  and  at  or  near 
a  part  of  the  said  road  situated  in  the  parish  of  New  Monkland  afore- 
said, which  is  distant  246  yards,  or  thereby,  from  the  farm -offices  of 
South  Medrox  aforesaid,  or  at  or  near  a  gate  or  entrance  into  a  park 
or  field  upon  the  lands  or  farm  of  South  Medrox  aforesaid,  commonly 
called  the  Kilknowe  Park,  situated  in  the  parish  of  New  Monkland 
aforesaid,  or  at  or  near  some  other  part  of  the  said  road,  or  of  the  said 
lands  or  farm,  situated  in  the  parish  of  New  Monkland  aforesaid,  to 
the  prosecutor  unknown,  you  the  said  Dennis  Connor  did,  wickedly 
and  feloniously,  attack  and  assault  Mary  Houston,  then  and  now  or 
lately  servant  to,  and  residing  with,  the  said  James  M'Lean  senior, 
and  did  seize  hold  of  her,  and  did,  with  a  stick,  or  with  some  other 
weapon  to  the  prosecutor  unknown,  strike  her  two  more  blows  on  or 


6  CASES  BEFORE  THE  HIGH  COURT 

No.  2.      near  her  breast  and  stomach,  or  other  part  or  parts  of  her  person,  and 

Connorand  ^^^  P"^*  y°^^  ^^'^^  under  her  petticoats,  and  upon  her  naked  person, 

Edward    and  did  seize  her  by  the  throat  to  prevent  her  crying  for  assistance, 

'^°"''"''°-  and  did  throw  or  force  her  down  to  the  ground ;  and  the  said  Mary 

Glasgow.    Houston  having  succeeded  in  rising  from  the  ground,  you  the  said 

1848.  '    Dennis  Connor  did  drag  or  pull  her  some  short  distance,  and  did  again 

r; :  throw  or  force  her  down  to  the  ground,  and  did  grasp  her  by  the  throat 

Rape,  and  ,  ,.,.,,..  j    j-j  i- 

Assault,    m  order  to  stifle  her  cries,  and  did  raise  her  petticoats,  and  did  lie 

upon  her,  and  did  have  carnal  knowledge  of  her  person,  forcibly  and 
against  her  will,  and  did  ravish  her  :  Oa  otherwise,  time  and  place 
last  above  libelled,  you  the  said  Dennis  Connor  did  wickedly  attack 
and  assault  the  said  Mary  Houston,  and  did  seize  hold  of  her,«and  did, 
with  a  stick,  or  with  some  other  weapon  to  the  prosecutor  unknown, 
strike  her  two  or  more  blows  on  or  near  her  breast  and  stomach,  or 
other  part  or  parts  of  her  person,  and  did  put  your  hand  under  her 
petticoats,  and  upon  her  naked  person,  and  did  seize  her  by  the  throat 
to  prevent  her  crying  for  assistance,  and  did  throw  or  force  her  down 
to  the  ground  ;  and  the  said  Mary  Houston  having  succeeded  in  rising 
from  the  ground,  you  the  said  Dennis  Connor  did  drag  or  pull  her  some 
short  distance,  and  did  again  throw  or  force  her  down  to  the  ground, 
and  did  grasp  her  by  the  throat  to  stifle  her  cries,  and  did  raise  her 
petticoats,  and  did  lie  upon  her,  and  did  attempt  to  have  carnal  know- 
ledge of  her  person,  forcibly  and  against  her  will ;  and  this  you  the 
said  Dennis  Connor  did,  with  intent  to  ravish  the  said  Mary  Houston, 
and  to  the  injury  of  her  person  :  Likeas  (2.),  time  above  libelled,  at 
or  near  a  part  of  the  said  road,  situated  in  the  parish  of  New  Monk- 
land  aforesaid,  and  distant  236,  or  thereby,  yards  from  the  farm-offices 
aforesaid,  or  at  or  near  some  other  part  of  the  said  road,  or  of  the  said 
farm,  situated  in  the  said  parish  of  New  Monkland,  to  the  prosecutor 
unknown,  you  the  said  Edward  Morrison  did,  wickedly  and  feloniously, 
attack  and  assault  ^gnes  M'Callum  or  James,  a  widow,  then  and  now 
or  lately  residing  with  Malcolm  M'Callum,  a  weaver,  then  and  now  or 
lately  residing  at  or  near  Annathill,  in  the  parish  of  New  Monkland 
aforesaid,  and  did  seize  hold  of  her,  and  did  throw  her  down  to  the 
ground,  and  did  fall  or  throw  yourself  upon  her ;  and  she  having  suc- 
ceeded in  getting  up  from  the  ground,  you  the  said  Edward  Morrison 
did  again  seize  hold  of  her,  and  did  carry  her  to  some  short  distance, 
and  did  again  throw  her  down  to  the  ground,  and  did  lie  upon  her, 
and  did  raise  or  attempt  to  raise  her  petticoats,  and  did  put  your  hand 
on  her  mouth,  and  did  wrap  a  shawl  around  her  head  and  mouth  to 
stifle  her  cries  for  assistance,  and  did  attempt  to  have  carnal  know- 
ledge of  her  person,  forcibly  and  against  her  will ;  and  this  you  the 
said  Edward  Morrison  did  with  intent  to  ravish  the  said  Agnes 
M'Callum  or  James,  and  to  the  injury  of  her  person  :  Likeas  (3.) 
time  above  libelled,  at  or  near  the  dwelling-house,  situated  at  or  near 
South  Medrox  aforesaid,  then  and  now  or  lately  occupied  by  the  said 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  7 

William  M'Lean  senior,  or  at  some  other  place  or  places  at  or  near      No.  2. 

Spnth  Medrox  aforesaid,  and  in  the  said  parish  of  New  Monkland,  to  Q;o„™°and 

the  prosecutor  unknown,  you  the  said  Dennis  Connor  and  Edward    Edward 

Morrison  did,  both  and  each,  or  one  or  other  of  you,  wickedly  and  fe-  Momaon. 

loniously,  attack  and  assault  William  M'Lean  junior,  son  of,  and  then    Glasgow. 

and  now  or  lately  residing  with,  the  said  James  M'Lean  senior,  and      ^^^g_  * 

did,  with  your  hands  and  feet,  or  with  one  or  more  of  them,  and  with  — ; 

•  1         7 1    1  -11  Rape,  and 

a  stick  or  bludgeon,  or  with  some  other  weapon  or  weapons  to  the  pro-    Assault. 

secutor  unknown,  inflict  several  severe  blows  on  or  near  his  forehead 
and  other  parts  of  his  person,  and  did  wrestle  with  him,  and  did  throw 
or  force  him  down  to  the  ground,  and  did  otherwise  maltreat  and  abuse 
him ;  by  all  which,  or  part  thereof,  he  was  cut  and  wounded,  to  the 
effusion  of  his  blood  and  the  injury  of  his  person  :  Farther,  James 
M'Lean  junior,  then  and  now  or  lately  farm-servant  to,  and  residing 
with,  the  said  James  M'Lean  senior,  having  gone  to  the  assistance  of 
the  said  William  M'Lean  junior,  you  the  said  Dennis  Connor  and  Ed- 
ward Morrison  did,  both  and  each,  or  one  or  other  of  you,  time  and 
place  or  places  last  above  libelled,  wickedly  and  feloniously  attack  and 
assault  the  said  James  M'Lean  junior,  and  did  seize  hold  of  him,  and 
did  struggle  with  him,jind  did  throw  or  force  him  down  to  the  ground, 
and  did  fall  above  him,  and  did,  with  your  fists,  repeatedly  strike  him 
on  several  parts  of  his  person,  and  did  otherwise  maltreat  and  abuse 
him ;  by  all  which,  or  part  thereof,  his  face  and  eyes,  or  one  or  more 
of  them,  were  scratched  and  wounded,  all  to  the  injury  of  his  person  : 
And  you  the  said  Edward  Morrison  being  conscious  of  your  guilt  in 
the  premises,  did  abscond  and  flee  from  justice. 

The  pannel  Morrison  having  been  fugitated  for  non- 
appearance, on  the  diet  being  called  against  Connor, 

W.  H.  Thomson  objected  to  the  relevancy  of  the  in- 
dictment, on  two  grojinds,  1st,  in  respect  of  the  vague- 
ness with  which  the  prosecutor  described  the  locus  where 
the  rape  was  said  to  have  been  committed,  in  so  far  as 
it  is  stated  that  it  was  '  at  or  near  a  gate  of  entrance 
'  into  a  park  or  field  upon  the  lands  or  farm  of  South 
'  Medrox  aforesaid,  commonly  called  the  Kilnknowe 
'  Park,  situated  in  the  Parish  of  New  Monkland  afore- 
'  said,  or  at  or  near  some  other  part  of  the  said  road,  or 
'  of  the  said  lands  or  farm,  situated  in  the  parish  of  New 
'  Monkland  aforesaid,  to  the  prosecutor  unknown.'  In 
detailing  the  alternative  charge  of  assault,  with  intent 
to  commit  rape,  the  words  '  or  otherwise,  place  last 
'  above  libelled,'  were  used  ;  this  implied  more  than  one 


8  CASES  BEFORE  THE  HIGH  COURT 

No.  2.    locus  had  been  previously  libelled,  which  was  the  more 

Connor  and  objectionable,  inasmuch  as,  on  looking  back,  the  place 

MoSn.  last  above  libelled  was  the  place  on  said  farm  '  to  the 

Glasgow.  '  prosecutor  unknown.'     Either,  therefore,  the  alterna- 

^1848^*'  *^v®  charge  was  libelled  with  an  undue  degree  of  uncer- 

■^      ^^  tainty,  or  there  was  more  than  one  place  intended  to  be 

Assault,   described  in  the  charge  of  rape,  in  which  case  the  libel 

was  deficient  in  not  giving  more  precise  notice  to  the 

pannel. 

Farther,  the  party  alleged  to  have  been  injured  was 
described  to  have  been  a  servant  '  of  said  James  M'Lean 
'  senior,  residing  with  him,' without  any  farther  description 
of  her.  There  had  not  been  any  James  M'Lean  previously 
mentioned  in  the  indictment,  the  only  M'Lean  named  as 
the  occupier  of  the  farm  being  designated  '  William.' 
This  was  too  uncertain  a  description  of  the  party  injured, 
inasmuch  as,  the  word  '  said'  being  superfluous,  the  in- 
sertion of  it  was  calculated  to  mislead,  and  this  the  more 
especially,  as  .the  prisoner  being  entitled  to  assume  his 
innocence  of  a  charge  of  this  nature,  he  would  thereby 
be  misled  as  to  the  nature  of  the  proof  necessary  to  ad- 
duce in  exculpation.  Indeed,  if  so  great  a  latitude  were 
allowed,  the  prosecutor  might  adduce  in  support  of  his 
charge  any  Mary  Houston,  who  was  servant  to  some 
James  M'Lean,  living  any  where  within  the  kingdom  of 
Scotland. 

Deas,  for  the  prosecution,  replied,  that  the  words' 
objected  to,  '  place  last  above  libelled,'  were  in  the  com- 
mon form  used  in  such  charges.     In  respect  to  the  other 
objection,  he  wished  time  to  consider  it,  and  moved  the 
Court  to  postpone  the  case  till  next  day. 

At  the  next  calling,  Deas  stated  that  he  would  not 
press  this  indictment  farther ;  and  on  his  motion,  the 
Court  deserted  the  diet  against  the  pannel,  pro  loco  et 
tempore. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY. 


NORTH   CIRCUIT. 


PERTH. 

Judges — The  Lord  Jdstice-Clerk  and  Lord  Wood.  oct.  12. 

1848. 

Her  Majesty's  Advocate — J.  M.  Bell  A.  D. 

AGAINST 

James  Flinn  and  Margaret  M'Donald  or  Brennan — Broun. 

Culpable  Homicide — Assadlt  with  Aggravations. — Circum- 
stances, in  which  the  Court  directed'"the  Jury  that,  after  the  pro- 
secutor had  withdrawn  the  charge  of  Culpable  Homicide,  they  were 
not  entitled  to  find  the  pannels  guilty  of  assault,  to  the  danger  of 
life. 

James  Flinn  and  Margaret  M'Donald  or  Brennan,     No.  3. 
were  accused  of  Culpable  Homicide ;  as  also.  Assault,  FUnn  Mid 
aggravated  by  being  to  the  serious  injury  of  the  person,  M^nlnaTd. 
and  to  the  danger  of  life :  ""p^rthT" 

Oct.  12. 
1848. 


In  so  far  as,  upon  the  8th  day  of  April  1848,  or  on  one  or  other 
of  the  days  of  that  mouth,  or  of  March  imme&iately  preceding,  or  of  Homicide 
May  immediately  following,  in  or  near  Guthrie's  Close,  in  or  near  *"=• 
Overgate  Street  of  Dundee,  you  the  said  James  Flinn  and  Margaret 
M'Donald  or  Brennan  did,  both  and  each,  or  one  or  other  of  you, 
wickedly  and  feloniously,  attack  and  assault  William  M'Donald,  then 
or  lately  before  labourer  or  fish-dealer,  residing  at  or  near  Hawkhill  of 
Dundee,  and  did  strike  him  with  your  fists  on  the  head  or  other  parts 
of  his  person,  and  did  knock  or  force  him  to  the  ground,  and  did  kick 
him  on  the  belly,  or  other  parts  of  his  person ;  and  you  the  said  Mar- 
garet M'Donald  or  Brennan  did  strike  the  said  William  M'Donald 
with  an  iron  tray  or  server  or  other  instrument  to  the  prosecutor  un- 
known, one  or  more  blows  on  the  head  or  other  parts  of  his  person ; 
and  you  the  said  James  Flinn  did,  one  or  more  times  press  your  knees 
or  limbs  forcibly  and  severely  on  the  back,  or  on  the  belly  or  other 
parts  of  the  person  of  the  said  William  M'Donald ;  and  you  the  said 
James  Flinn  and  Margaret  M'Donald  or  Brennan  did,  both  and  each. 


10  CASES  BEFORE  THE  HIGH  COURT 

No.  3.  or  one  or  other  of  you,  otherwise  maltreat  and  abuse  the  said  William 

James  M'Donald ;  by  all  which,  or  part  thereof,  the  said-William  M'Donald 

Flinn  and  '     •'                     >        r                                              e  i.-    ve       -nA  in 

Margaret  was  seriously  injured  in  his  person,  to  the  danger  ot  nis  lite,  ann  lu 

M'Donald.  consequence  thereof  died,  on  or  about  the  night  of  the  9th,  or  morning 

Perth.  "  of  the  10th  day  of  April  foresaid,  and  was  thup  culpably  bereaved  of 

^fg-^l^-    life  by  you  the  said  James  Flinn  and  Margaret  M'Donald  or  Brennan, 

-rr-, — — —  or  one  or  other  of  you. 
Culpable  •' 

Tc!  ^'  It  appeared  from  the  evidence,  that  after  the  scuffle 
which  was  shewn  to  have  taken  place  amongst  the  par- 
ties, in  the  course  of  which  it  was  proved,  that  the  pan- 
nel  Flinn  had  thrown  the  deceased,  and  fallen  upon  him 
with  his  knees  on  the  stomach ;  and  also,  that  the  fe- 
male prisoner  had  dealt  him  a  blow  over  the  head  with 
an  iron  tray, — that  he  had  gone  to  a  public  house  and 
partaken  rather  freely  of  whisky.  The  medical  wit- 
nesses who  had  examined  the  body,  on  cross-examina- 
tion admitted,  that  drinking  ardent  spirits  after  receiving 
such  injuries  as  those  spoken  to  by  the  witnesses,  would 
be  calculated  to  excite  inflammation,  and  occasion  death, 
even  in  cases  where  otherwise  no  such  result  might  have 
followed. 

Upon  this  the  Advocate-depute  abandoned  the  charge 
of  Culpable  Homicide,  and  addressed  the  jury  in  support 
of  the  charge  of  Assault,  as  laid,  with  the  aggravations. 

Broun,  for  the  pannels,  contended,  that  as  the  public 
prosecutor  had  abandoned  the  charge  of  culpable  homi- 
cide, the  aggravations  to  the  charge  of  assault  that  it 
was  to  the  danger  of  life,  must  also  be  abandoned,  in- 
asmuch, as  the  circumstance  that  death  had  followed 
within  twenty-four  hours,  most  clearly  shewed  either 
that  the  death  was  the  result  of  the  injuries  received, 
or  that  it  had  resulted  altogether  from  the  state  of  intoxi- 
cation in  which  it  was  shewn  the  deceased  was,  after  the 
time  of  the  alleged  injuries. 

The  Lord  Justice-Clerk  in  summing  up  to  the  jury, 
said,  that,  since  the  charge  of  culpable  homicide  had  been 
given  up,  so  he  thought  must  the  aggravation  to  the 
charge  of  assault,  that  it  was  to  the  danger  of  life.  It 
did  not  seem  possible  to  sustain  such  an  aggravation  in 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  1 1 

a  case  where  death  had  unquestionably  resulted  within    No.  3. 
twenty-four  hours  after  the  injuries  alleged,  after  the  Fiinn  and 
public  prosecutor  had,  by  abandoning  the   charge   of  M-oSd. 
culpable  homicide,  confessed  that  the  death  had  not  been    perth. 
the  result  of  the  outrages  charged.     In  such  a  case,  it    ^il'il"^' 
must  either  be  culpable  homicide,  or  common  assault,  "culpabiT 
because,    where    the    death    followed   the   injuries   so  Homicide, 
speedily,  the  principal  charge  ought  to  have  been  in- 
sisted in  if  the  death  could  have  been  traced  to  the  vio- 
lence charged  against  the  pannels ;  and  if  it  could  not, 
then  there  was  equally  no  evidence  in  support  of  the 
aggravation.     His  Lordship  added,  that  the  Advocate- 
depute  had  done  quite  right  in  withdrawing  the  principal 
charge ;  and  that  in  these  remarks  he  was  not  stating 
any  general  rule,  but  merely  making  observations  on 
the  particular  evidence  in  this  case,  in  which  the  ag- 
gravation of  danger  to  life  could  not  consistently  be  in- 
sisted in  if  the  charge  of  culpable  homicide  was  actually 
given  up. 

The  Jury,  by  a  large  majority,  found  the  pannels  guilty 
of  assault,  to  the  serious  injury  of  the  person. 

In  respect  of  which  verdict  of  assize,  the  pannels  were 
sentenced  to  be  imprisoned  in  the  prison  of  Dundee  for 
four  calendar  months. 


12  CASES  BEFORE  THE  HIGH  COURT 


Oct.  13.  Judge— The  Lord  Justice-Clerk. 

1848.  " 

John  Bruce,  Appellant— P.  Eraser. 

AGAINST 

Thomas  Duncan  and  John  M'Lean,  Respondents— (?.  Young. 

Appeal— Procedure.— Held  that  the  Sheriff  might  competently  pro- 
nounce sentence  in  a  suit,  at  the  instance  of  the  Procurator-fiscal,  to 
have  a  vicious  dog  destroyed,  although  no  record  was  kept  of  the 
proceedings,  and  the  sentence  was  pronounced  in  the  absence  of  the 
defender. 

No.  4.        On  the  13th  of  August  1846,  the  following  Petition 
Duncan  &  and  CoHiplaint  was  presented  to  the  Sheriff  of  Perth- 

^^  shire,  by  the  respondents,  as  joint  procurators-fiscal  for 

Oct.  13.   the  public  interest,  shewing — 

1848.  ^ 


Appeal.  (  Xhat  the  petitioners  have  received  information  that  John  Bruce, 
'  farmer  at  Rosemount,  has  in  his  possession  a  large  dog  of  a  black  or 
'  dark  colour,  which  is  vicious  and  dangerous  to  the  lieges.  That  the 
'  said  dog  has  been  in  the  general  practice  of  attacking  and  biting 
'  people  who  happened  to  be  passing  by  the  said  farm  of  Rosemount ; 
'  and  in  particular,  that  the  said  dog  did,  upon  the  evening  of  Tuesday 
'  the  twenty-third  day  of  June  last,  or  about  that  time,  attack  and 
'  bite,  to  the  effusion  of  their  blood,  and  dangerous  injury  of  their  per- 
'  sons,  Thomas  Reid,  forester  at  St  Martin's,  William  Wallace  John- 
'  ston,  gardener  at '  St  Martin's,  and  James  M'Laren,  servant  to  the 
'  Rev.  John  Park  of  St  Martin's,  and  that  upon  the  public  road  called 
'  the  Den  road,  and  about  midway  between  the  farm  of  St  Martin's  and 
'  Rosemount,  while  the  said  persons  were  going  home.  That  the  dog 
'  received  no  provocation  to  occasion  such  attack.  That  the  said  John 
'  Bruce  has  been  frequently  desired  and  required  either  to  chain  up 
'  the  said  dog,  or  to  destroy  it  for  the  safety  of  the  lieges,  but  he  re- 
'  fuses  so  to  do.  That  the  petitioners,  in  consequence  of  the  many 
'  complaints  made  to  them  regarding  the  viciousness  of  the  said  dog, 
'  and  the  public  danger  incurred  by  allowing  it  to  go  at  large,  did,  on 


AND  CIRCUIT  COURTS  OF  JUSTICIAEY.  13 

'  the  twenty-seventli  day  of  June  last,  by  letter  addressed  to  the  said  No.  4. 

'  John  Bruce,  require  him  to  get  the  dog  destroyed,  but  to  this  appli-  Bruce  « 

'  cation  no  attention  was  given.     That  it  is  therefore  necessary  for  the  M'Lean. 

'  safety  of  the  public  that  the  said  dog  be  destroyed,  under  your  Lord-  „     , — 

'  ship's  authority.'     And  therefore  praying,  that  it  might  please  his  Oct.  1 3. 
Lordship  '  to  grant  warrant  for  citing  the  said  John  Bruce  to  appear      ^^^^' 

'  before  you,  to  answer  to  this  complaint,  and  on  the  facts  therein  Appeal. 
'  stated  being  admitted  or  proved,  to  grant  warrant  to  officers  of  court 
'  to  destroy  the  said  dog,  and  to  find  the  said  John  Bruce  liable  in  the 
'  expenses  of  this  application,  and  consequent  procedure.' 


Thereafter,  on  the  17th  of  August  1846,  in  obedience 
to  the  deliverance  of  the  Sheriff-substitute  on  the  fore- 
going petition  and  complaint,  the  appellant  appeared  in 
court,  and  verbally  pleaded  not  guilty.  After  which, 
without  any  record,  the  Sheriff-substitute  ordered  proof 
of  the  facts  alleged  in  the  petition  and  complaint,  and 
on  the  24th  March  1848,  decerned  against  the  appel- 
lant, in  terms  of  the  prayer  of  the  petition.  To  which 
interlocutor  the  Sheriff  adhered  on  appeal. 

Against  this  decision,  the  appellant  appealed  to  the 
Circuit  Court,  when, 

Feaser  argued  on  his  behalf,  that  the  whole  pro- 
ceedings before  the  Sheriff  were  inept,  in  respect  (1.), 
if  the  case  was  to  be  regarded  as  a  criminal  one,  at  the 
instance  of  the  Procurator-fiscal,  then  the  judgment  was 
incompetent,  it  having  been  pronounced  in  the  absence 
of  the  appellant ;  and  (2.),  if  the  judgment  was  to  be 
regarded  as  having  been  pronounced  in  a  civil  case, 
it  was  equally  void,  inasmuch  as  no  record  had  been 
made  up  and  closed  therein,  and  the  acts  of  sederunt 
regulating  civil  causes  in  Sheriff  Courts,  had  been  alto- 
gether disregarded. 

Young,  for  the  Respondents,  answered, — This  was  a 
proceeding  sui  generis.  It  was  an  application  to  the 
Sheriff,  as  chief  magistrate  of  the  county,  at  the  instance 
of  the  Procurator-fiscal,  as  conservator  of  the  public 
safety.  The  Procurator-fiscal  was  not  in  the  position  of 
a  party  prosecuting  a  civil  claim  or  vindicating  a  patri- 


14  CASES  BEFORE  THE  HIGH  COURT 

No.  4.    menial  risrht,  and  therefore  the  Act  of  Sederunt  had  no 

Bruce  «■  , , 

Duncan  &  apphcation.     On  the  other  hand,  the  personal  presence 

^  of  the  appellant  during  the  proceedings  was  unnecessary, 

1848.'    there  being  no  conclusion  for  punishment  or  censure 


Appeal,    against  him. 

The  Lord  Justice-Clerk  pronounced  the  following 
interlocutor : — 

'  Perth,  13th  October  1848. — The  Lord  Justice-Clerk 
'  having  heard  counsel  for  the  parties,  affirms  the 
'  judgments  of  the  Sheriff  complained  of ;  dismisses 
'  the  appeal :  Finds  the  respondents  entitled  to  the 
'  expenses  of  the  appeal,  as  the  same  shall  be  taxed 
'  by  the  Clerk,  and  for  which  and  the  dues  of  extract, 
'  decerns.' 

John  Kemp,  Writer,  Perth,  Duncan  and  M'Lean,  Writers,  Perth — Agents. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  15 


Judqe — The  Lord  Justice-Clbbk. 

Dundee  and  Union  Whale  Fishing  Company,  Dundee,  Appellants 
— P.  Fraser. 


RossLYN  Mavour  and  Alexander  Paton,  Mariners  in  Dundee, 
Respondents — Millar — Ogilvy. 

Appeal — Competency — Expenses. — Held  (overruling  Wilson  v. 
Cameron,  Broun,  vol.  ii.,  284)  that  an  appeal  from  the  Sheriff  is 
comp.etent  to  the  Circuit  Court,  before  decerniture  for  the  taxed  ex- 
penses in  the  original  suit. 

This  was  an  appeal  against  the  judgment  of  the  Sheriff    No.  s. 
of  Forfarshire.  ^"^^^L^ 

Millar,  for  the  Respondents,  objected  to  the  compe-  r^^c,, 
tency  of  the  appeal,  inasmuch  as,  although  the  Sheriff  •°-  Mavour. 
had  pronounced  a  final  interlocutor  on  the  merits,  there-    ^^''th. 
by  finding  expenses  due,  and  remitting  to  the  auditor     i848.' 
to  tax  the  same  and  report,  the  appeal  had  been  brought    Appeal. 
before  the  expenses  had  been  taxed  and  decerned  for. 
The  Act  of  Sederunt  of  11th  July  1839,^  according  to  the 
judicial  construction  put  thereon  in  numerous  cases,  is 
decisive  of  the  question,  ( Wilson  and  Matheson  v.  Came- 
ron, Inverness,  Sept.  20.  1844,  Broun,  vol.  ii.  p.  284, 
and  cases  there  cited.)     Indeed,  to  adopt  any  other  con- 
struction, would  tend  unduly  to  multiply  appeals,  inas- 


1  This  act,  which  was  passed  for  regulating  forms  of  process  in 
Sheriff  Courts,  declares,  §  131,  That,  '  in  civil  causes,  appeals  to  the 
'  next  Circuit  Court,  in  terms  of  the  Act  20th  Geo.  II.  chapter  43  ; 
'  31st  Geo.  II.  c.  42  ;  54th  Geo.  III.  c.  67,  are  competent  only  after 
c  a  final  judgment  has  been  pronounced,  and  the  matter  of  expenses 
'  has  been  disposed  of,  and  where  the  subject-matter  in  the  suit  does 
'  not  exceed  in  value  Twenty-five  pounds  sterling. 


16  CASES  BEFORE  THE  HIGH  COURT 

Dundef  &  ^^^^  3,s  quGstions  might  arise  on  the  auditor's  report, 

Union,    which  might  form  a  separate  ground  of  appeal,  and  so 

Fishing  Co.  hang  up  the  case  for  six  months,  which  questions  would 

-,  ^"^°"'''  be  heard  and  determined  along  with  the  merits  of  the 

Oat.  13.   suit,  if  the  construction  hitherto  adopted  was  adhered  to. 

'^^^'         The  Lord  Justice-Cleek  said  he  was  extremely  an- 

AppeaJ.  xious  to  do  nothing  which  would  have  the  effect  of  dis- 
couraging appeals  to  the  Circuit  Court ;  and  after  con- 
sulting with  Lord  Wood,  who  was  presiding  in  the  cri- 
minal Court,  repelled  the  objection  to  the  competency  of 
the  appeal,  and  pronounced  the  following  interlocutor, 
after  the  appeal  had  been  discussed  on  the  merits  : — 

'  Perth,  iSth  October  1848.— The  Lord  Justice-Clerk 
'  having  heard  counsel  for  the  parties,  dismisses  the  ap- 
'  peal :  Finds  the  respondents  Mavour  and  Alexander 
'  Paton  entitled  to  their  expenses  in  this  appeal,  as  the 
'  same  shall  be  taxed  by  the  Clerk,  and  for  which  ex- 
'  penses,  and  the  dues  of  extract,  decerns.' 

For  the  Appellants,  — -  Floweedew— For  Paton,  Shaw,  M'Lauchlan  &  Reid, 
Writers,  Dundee.— For  Maronr, Galloway,  Writer,  Dundee. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  If 


HIGH    COURT. 

Present, 
The  Lord  Justice-Clerk. 

Lords  Mackenzie  and  Medwyn. 

Her  Majesty's  Advocate — TAe  Lord  Advocate  Buther/urd. — 
Crau/urd  A.D.—Deas  A.D J.  M.  Bell  A.D. 

AGAINST 

James  Gumming — Logan — A.  Grahame. 

Henrt  Ranken — Moncreiff* — A.  Grahame. 

John  Grant  and  Robert  Hamilton — Logan— Lorimer. 

Indictment — Statute — Conspiracy  —  Sedition — Relevancy.  — 
Held,  1st,  That  it  is  not  objectionable  in  an  indictment  under  the 
Act  lltb  and  12th  Vict.  c.  12,  to  libel  a  previous  design  as  evidenced 
by  subsequent  overt  acts.  2d,  That  it  is  enough,  in  charging  a  con- 
spiracy, to  state  that  the  pannel  had  presided  over  a  body  '  formed 
'  for  the  illegal  purposes  libelled,'  without  charging  him  to  have 
done  so  in  pursuance  of  the  common  intent  laid  in  the  major.  3d, 
That  the  statute  11th  and  12th  Vict.  c.  36,  does  not  exclude  the 
common  law,  and  that  it  is  competent  to  libel  the  same  species  facti 
as  sedition  at  common  law,  as  well  as  a  contravention  of  the  statute. 
4th,  That  a  conspiracy,  to  effect  an  alteration  of  the  Constitution 
by  force,  is  only  an  aggravated  form  of  sedition  at  common  law. 

Evidence. — 1st,  When  it  was  proposed  to  shew  a  witness  a  pamphlet 
said  to  have  been  published  by  an  association  of  which  the  pannels 
were  members, — ruled  that  this  was  competent  without  first  proving 
that  the  prisoners  were  present  at  the  meeting  where  the  matter  was 
discussed,  reserving  to  them  the  right  of  shewing  they  were  not 
concerned  therewith.  2d,  Question  whether  language  indicative  of  a 
conspiracy  could  be  proved  against  a  pannel,  as  having  been  used  by 

B 


Nov.  7. 
1848. 


18  OASES  BEFORE  THE  HIGH  COURT 

him  on  an  occasion  not  mentioned  in  the  libel.     3d,  Held  that  it 
was  competent  to  prove  other  expressions  of  a  seditious  nature,  be- 

.  sides  those  charged  in  the  libel,  in  support  of  the  charge  of  sedition.- 
4th,  Held  that  a  letter  could  not  be  read  in  support  of  the  charge  of 
conspiracy,  libelled  as  commencing  at  a  date  subsequent  to  that  of 
the  letter.  5th,  Held,  that  where  a  letter  relating  to  the  alleged 
common  design  had  been  directed  to  one  of  the  pannels,  and  found 
in  the  possession  of  another,  it  was  competent  evidence  against  both, 
although  it  was  not  shewn  that  the  writer  was  a  conspirator,  or  that 
the  contents  were  true,  or  that  it  was  ever  seen  by  the  party  to 
whom  it  was  addressed. 

Verdict. — Held,  1st,  That  it  is  unnecessary  to  libel  intention  in  a 
charge  of  sedition ;  and  2d,  That  when  the  Jury  found  the  pannels 
guilty  of  sedition,  in  so  far  as  they  had  used  language  '  calculated  to 
'  excite  popular  disaffection,  and  resistance  to  lawful  authority,'  and 
explained  that  they  had  purposely  omitted  the  word  intended,  which 
was  also  charged  in  the  minor,  that  the  verdict  was  good,  and  sen- 
tence might  competently  follow  thereon. 

No.  6.        James  Gumming,  shoemaker,  residing  in  Duncan  Street, 
Gumming,  Drummond  Place,  Edinburgh,  was  charged  on  Criminal 

John  Grant  T,„ttp™o  . 
and  Others,  ijeliers  . 


High  Court. 
Nov.  7.        That  Albeit,  by  an  Act  passed  in  the  eleventh  year  of  Our  reign, 

^^^^-      chapter  twelve,  entituled  '  An   Act  for  the~  better  Security  of  the 

Conspiracy  '  Crown  and  Government  of  the  United  Kingdom,''  it  is  by  section 
&  Sedition.  •' 


^  The  11th  Vict.  cap.  12,  after  reciting,  that  '  by  an  act  of  the 
Parliament  of  Great  Britain  passed  in  the  thirty-sixth  year  of 
the  reign  of  His  late  Majesty  King  George  the  Third,  intituled 
'  An  act  for  the  safety  and  preservation  of  His  Majesty's  person  and 
'  Government  against  treasonable  and  seditious  practices  and  attempts,' 
it  was  among  other  things  enacted,  that  if  any  person  or  persons 
whatsoever,  after  the  day  of  the  passing  of  that  act,  during  the 
natural  life  of  His  said  Majesty,  and  until  the  end  of  the  next  session 
of  Parliament  after  the  demise  of  the  crown,  should,  within  the  realm 
or  without,  compass,  imagine,  invent,  devise,  or  intend  death  or  de- 
struction, or  any  bodily  harm  tending  to  death  or  destruction,  maim 
or  wounding,  imprisonment  or  restraint  of  the  person  of  His  said 
Majesty,  his  heirs  or  successors,  or  to  deprive  or  depose  him  or  them 
from  the  style,  honour,  or  kingly  name  of  the  imperial  crown  of  this 
realm  or  of  any  other  of  His  said  Majesty's  dominions  or  countries, 
or  to  levy  war  against  His  said  Majesty,  his  heirs  and  successors. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  19 

third  of  the  said  Act  enacted,  'That,  if  any  person  whatsoever,  after     No.  6. 

'  the  passing  of  this  Act,  shall,  within   the   United   Kingdom  or  c^^- 

'  without,  compass,  imagine,  invent,  devise,  or  intend  to  deprive  or  de-  John  Grant 

'  pose  Our  Most  Gracious  Lady  the  Queen,  Her  heirs  and  successors,  °'°"  Others. 

High  Court. 

Nov.  7. 

1848. 
'  within  this  realm,  in  order,  by  force  or  constramt,  to  compel  him  or ; 

'  them  to  change  his  or  their  measures  or  counsels,  or  in  order  to  put  ^°ge^'^*on 

'  any  force  or  constraint  upon  or  to  intimidate  or  overawe  both  houses 

'  or  either  house  of  Parliament,  or  to  move  or  stir  any  foreigner  or 

'  stranger  with  force  to  invade  this  realm  or  any  other  of  His  said 

'  Majesty's  dominions  or  countries  under  the  obeisance  of  His  said 

'  Majesty,  his  heirs  and  successors,  and  such  compassings,  imaginations, 

'  inventions,  devices,  or  intentions,  or  any  of  them,  should  express, 

'  utter,  or  declare,  by  publishing  any  printing  or  writing,  or  by  any 

'  overt  act  or  deed,  being  legally  convicted  thereof,  upon  the  oaths  of 

'  two  lawful  and  credible  witnesses,  upon  trial,  or  otherwise  convicted 

'  or  attainted  by  due  course  of  law,  then  every  such  person  or  persons 

'  so  as  aforesaid  offending  should  be  deemed,  declared,  and  adjudged 

'  to  be  a  traitor  and  traitors,  and  should  suffer  pains  of  death,  and  also 

'  lose  and  forfeit  as  in  cases  of  high  treason  :  And  whereas  by  an  act 

'  of  Parliament  passed  in  the  fifty-seventh  year  of  the  same  reign, 

'  eutituled  '  An  act  to  make  perpetual  certain  parts  of  an  act  of  the 

"  thirty-sixth  year  of  His  present  Majesty,  for  the  safety  and  preser- 

"  vation  of  His  Majesty's  person  and  Government  against  treasonable 

"  and  seditious  practices  and  attempts,  aud  for  the  safety  and  preser- 

"  vation  of  the  person  of  His  Royal  Highness  the  Prince  Regent 

"  against  treasonable  practices  and  attempts,'  all  the  herein-before  re- 

'  cited  provisions  of  the  said  act  of  the  thirty-sixth 'year  of  His  said 

'  Majesty's  reign,  which  relate  to  the  heirs  and  successors  of  his  said 

'  Majesty,  the  sovereigns  of  these  realms,  were  made  perpetual :  And 

'  whereas  doubts  are  entertained  whether  the  provisions  so  made  per- 

'  petual  were  by  the  last-recited  act  extended  to  Ireland  :  And  where  - 

'  as  it  is  expedient  to  repeal  all  such  of  the  provisions  made  perpetual 

'  by  the  last-recited  act  as  do  not  relate  to  offences  against  the  person 

'  of  the  sovereign,  and  to  enact  other  provisions  instead  thereof  ap  - 

'  plicable  to  all  parts  of  the  United  Kingdom,  and  to  extend  to  Ireland 

'  such  of  the  provisions  of  the  said  acts  as  are  not  hereby  repealed  :' 

— enacts,  Sect.  1,  '  That  from  and  after  the  passing  of  this  act  the  pro- 

'  visions  of  the  said  act  of  the  thirty -sixth  year  of  the  reign  of  Kin" 

'  George  the  Third,  made  perpetual  by  the  said  act  of  the  fifty-seventh 

'  year  of  the  same  reign,  and  all  the  provisions  of  the  last-mentioned 

'  act  in  relation  thereto,  save  such  of  the  same  respectively  as  relate 

'  to  the  compassing,  imagining,  inventing,  devising,  or  intending  death 

'  or  destruction,  or  any  bodily  harm  tending  to  death  or  destruction, 


&  Sedition. 


20  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     '  from  the  style,  honour,  or  royal  name  of  the  Imperial  Crown  of 

James      .  jj^g  United  Kingdom,  or  of  any  other  of  Her  Majesty's  dominions 

JohnS't '  and  countries,  or  to  levy  war  against  Her  Majesty,  Her  heirs,  or 

andOthera.  t  successors,  within  any  part  of  the  United  Kingdom,  in  order,  by 

High  Court.  

Nov.  7. ■ '         "^ 

^°^^'  '  maim  or  wounding,  imprisonment  or  restraint  of  the  person  of  the 
Conspiracy  .  jjgjrg  and  successors  of  His  said  Majesty  King  George  the  Third,  and 
the  expressing,  uttering,  or  declaring  of  such  compassings,  imagma- 
tious,  inventions,  devices,  or  intentions,  or  any  of  them,  shall  be  and 
the  same  are  hereby  repealed.'— Sect.  2, '  That  such  of  the  said  recited 
provisons  made  perpetual  by  the  said  act  of  the  fifty-seventh  year  of 
the  reign  of  King  George  the  Third  as  are  not  hereby  repealed,  shall  ex- 
tend to  and  be  in  force  in  that  part  of  the  United  Kingdom  called  Ire- 
land.'—Sect.  3, '  That  if  any  person  whatsoever,  after  the  passing  of  this 
act  shall,  within  the  United  Kingdom  or  without,  compass,  imagine, 
invent,  devise,  or  intend  to  deprive  or  depose  our  most  gracious  lady 
the  Queen,  her  heirs  or  successors,  from  the  style,  honour,  or  royal 
name  of  the  imperial  crown  of  the  United  Kingdom,  or  of  any  other 
of  Her  Majesty's  dominions  and  countries,  or  to  levy  war  against 
Her  Majesty,  her  heirs  or  successors,  within  any  part  of  the  United 
Kingdom,  in  order  by  force  or  constraint  to  compel  her  or  them  to 
change  her  or  their  measures  or  counsels,  or  in  order  to  put  any 
force  or  constraint  upon  or  in  order  to  intimidate  or  overawe  both 
houses  or  either  house  of  Parliament,  or  to  move  or  stir  any 
foreigner  or  stranger  with  force  to  invade  the  United  Kingdom  or 
any  other  Her  Majesty's  dominions  or  countries  under  the  obesiance 
of  Her  Majesty,  her  heirs  or  successors,  and  such  compassings,  ima- 
ginations, inventions,  devices,  or  intentions,  or  any  of  them,  shall 
express,  utter,  or  declare,  by  publishing  any  printing  or  writing,  or 
by  open  and  advised  speaking,  or  by  any  overt  act  or  deed,  every 
person  so  oflfending  shall  be  guilty  of  felony,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  trans- 
ported beyond  the  seas  for  the  term  of  his  or  her  natural  life,  or  for 
any  term  not  less  than  seven  years,  or  to  be  imprisoned  for  any  term 
not  exceeding  two  years,  with  or  without  hard  labour,  as  the  court 
shall  direct.' — Sect.  4, '  That  no  person  shall  be  prosecuted  for  any 
felony  by  virtue  of  this  act  in  respect  of  such  compassings,  imagina- 
tions, inventions,  devices,  or  intentions  as  aforesaid,  in  so  far  as  the 
same  are  expressed,  uttered,  or  declared  by  open  and  advised  speak- 
ing only,  unless  information  of  such  compassings,  imaginations,'  in- 
ventions, devices,  and  intentions,  and  of  the  words  by  which  the 
same  were  expressed,  uttered,  or  declared^  shall  be  given  upon  oath 
to  one  or  more  Justice  or  Justices  of  the  Peace,  or  to  any  Sheriff  or 
Steward,  or  Sheriff  Substitute  or  Steward  Substitute,  in  Scotland, 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  21 

force  or  constraint,  to  compel  Her  or  them  to  change  Her  or  their      No,  6. 

measures  or  counselSj  or  in  order  to  pat  any  force  or  constraint  npon,     James 

or  in  order  to  intimidate  or  overawe,  both  Houses  or  either  House  of  jgjm  (jj-ant 

Parliament,  or  to  move  or  stir  any  foreigner  or  stranger  with  force  and  Others. 

to  invade  the  United  Kingdom,  or  any  other  Her  Majesty's  domi-  HighCourt. 

Nov.  7. 
1848. 


within  six  davs  after  such  words  shall  have  been  spoken,  and  unless  Conspiracy 
■'  &  Sedition, 

a  warrant  for  the  apprehension  of  the  person  by  whom  such  words 

shall  have  been  spoken  shall  be  issued  within  ten  days  next  after 
such  information  shall  have  been  given  as  aforesaid,  and  unless  such 
warrant  shall  be  issued  within  two  years  next  after  the  passing  of 
this  act ;  and  that  no  person  shall  be  convicted  of  any  such  corn- 
passings,  imaginations,  inventions,  devices,  or  intentions  as  aforesaid, 
in  so  far  as  the  same  are  expressed,  uttered,  or  declared  by  open  or 
advised  speaking  as  aforesaid,  except  upon  his  own  confession  in 
open  court,  or  unless  the  words  so  spoken  shall  be  proved  by  two 
credible  witnesses.' — Sect.  5, '  That  it  shall  be  lawful,  in  any  in- 
dictment for  any  felony  u6der  this  act,  to  charge  against  the  offender 
any  number  of  the  matters,  acts,  or  deeds  by  which  such  compass- 
ings,  imaginations,  inventions,  devices,  or  intentions  as  aforesaid,  or 
any  of  them,  shall  have  been  expressed,  uttered,  or  declared.' — 
Sect.  7,  '  That  if  the  facts  or  matters  alleged  in  an  indictment  for  any 
felony  under  this  act  shall  amount  in  law  to  treason,  such  indictment 
shall  not  by  reason  thereof  be  deemed  void,  erroneous,  or  defective  ; 
and  if  the  facts  or  matters  proved  on  the  trial  of  any  person  indicted 
for  any  felony  nnder  this  act  shall  amount  in  law  to  treason,  such 
person  shall  not  by  reason  thereof  be  entitled  to  be  acquitted  of  such 
felony;  but  no  person  tried  for  such  felony  shall  be  afterwards  pro- 
secuted for  treason  upon  the  same  facts.' — Sect.  9,  '  That  no  person 
committed  for  trial  in  Scotland  for  any  offence  under  this  act  shall 
be  entitled  to  insist  on  liberation  on  bail,  unless  with  consent  of  the 
public  prosecutor,  or  by  warrant  of  the  High  Court  or  Circuit  Court 
of  Justiciary,  in  such  and  the  like  manner  and  to  the  same  effect  as 
is  provided  by  an  act  passed  in  the  session  of  Parliament  holden  in 
the  fifth  and  sixth  years  of  the  reign  of  His  Majesty  King  George 
the  Fourth,  intituled  '  An  act  to  provide  that  persons  accused  of 
forgery  in  Scotland  shall  not  be  entitled  to  bail,  unless  in  certain 
cases  /  but  the  trial  of  any  person  so  committed,  and  whether  libe- 
rated on  bail  or  not,  shall  in  all  cases  be  proceeded  with  and  brought 
to  a  conclusion  under  the  like  certification  and  conditions  as  if  inti- 
mation to  fix  a  diet  for  trial  had  been  made  to  the  public  prosecutor 
in  terms  of  an  act  passed  in  the  Scottish  Parliament  in  the  year  one 
thousand  seven  hundred  and  one,  intituled  '  An  act  for  preventing 
wrongous  imprisonment,  and  against  undue  delays  in  trials." 


22  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  I  niona,  or  countries  under  the  obeisance  of  Her  Majesty,  Her  beirs 
Gumming,  '  and  successors,  and  such  compassings,  imaginations,  inventions,  de- 
JohnGrant  «  yices  or  intentionaj  or  any  of  them,  shall  express,  utter,  and  declare, 
^°  '  by  publishing  any  printing  or  writing,  or  by  open  and  advised  speak- 

High  Cpurt.  I  ijjg^  Qj.  \yy  a^jjy  Qvert  act  or  deed,  every  person  so  offending  shall  be 
1848.'  '  guilty  of  felony,  and,  being  convicted  thereof,  shall  be  liable,  at  the 
^  :  '  discretion  of  the  court,  to  be  transported  beyond  the  seas  for  the 
&  Sedition. '  term  of  his  or  her  natural  life,  or  for  any  term  not  less  than  seven 
'  years,  or  to  be  imprisoned  for  any  4erm  not  exceeding  two  years, 
'  with  or  without  hard  labour,  as  the  Court  shall  direct :'  And  albeit, 
by  the  laws  of  this  and  of  every  other  well-governed  realm,  the 
wickedly  and  feloniously  Conspiring  to  Effect  an  Alteration  of  the 
Laws  and  Constitution  of  the  Realm  by  force  and  violence,  or  by 
arroed  resistance  to  lawful  authority ;  As  also  Sedition,  are  crimes  of 
an  heinous  nature,  and  severely  punishable  :  yet  tbue  it  is  and  of 
VEBITT,  that  the  said  James  Camming  is  guilty  of  the  statutory  crime 
and  felony  above  libelled,  and  of  the  crime  of  conspiracy  at  common 
law  above  libelled,  and  of  the  crime  of  sedition  above  libelled,  or  of  one 
or  more  of  the  said  crimes,  actor,  or  art  and  part :  In  so  far  as,  in  the 
months  of  April,  May,  June,  and  July,  1848,  or  on  one  or  other  of 
them,  the  particular  time  being  to  the  prosecutor  unknown,  the  said 
James  Cumming  did,  wickedly  and  feloniously,  compass,  imagine,  in- 
vent, devise,  or  intend  to  levy  war  against  Us,  within  that  part  of  the 
United  Kingdom  called  Scotland,  in  order  by  force  or  constraint  to 
compel  Us  to  change  Our  measures  or  counsels,  or  in  order  to  put 
force  and  constraint  upon,  or  in  order  to  intimidate  or  overawe,  both 
Houses  or  either  House  of  Parliament  j  and  such  compassing,  imagina- 
tion, invention,  device,  or  intention,  or  one  or  more  of  them,  the  said 
James  Cumming  did,  on  or  about  the  28th  day  of  June  1848,  or  on 
one  or  other  of  the  days  of  that  month,  or  of  May  immediately  pre- 
ceding, or  of  July  immediately  following,  and  within  or  near  a  room 
or  hall  situated  in  or  near  Infirmary  Street,  in  or  near  Edinburgh, 
commonly  called  the  Trades'  Hall,  wickedly  and  feloniously,  express, 
utter,  and  declare,  by  circulating  or  distributing,  and  thereby  publish- 
ing, or  causing  to  be  circulated  or  distributed,  and  thereby  published, 
a  printed  or  written  placard  in  the  following  or  similar  terms  : — > 

'  NATIONAL  GUARD. 

'  A  Nation  to  be  free,  requires  but  Arms  and  a  knowledge  of 
'  their  use.' 

'  A  Public  Meeting  of  the  National  Guard  will  be  held  in  the 
'  Trades'  Hall,  Infirmary  Street,  on  Wednesday,  June  28,  1848,  For 
'  the  transaction  of  important  business.  Doors  open  at  Eio-ht  Chair 
'  to  be  taken  at  Half-past  Eight.    The  various  Clubs  are  respectfully 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  23 

«  invited  to  attend.     An  opportunity  will  be  given  to  those  desirous  of     No.  6. 

'  joining.  James 

■'  °  Gumming, 

"  It  is  the  duty  of  all  men  to  have  arms." — Fohtescue.                 John  Grant 
"  It  is  the  right  and  duty  of  all  Freemen  to  have  Arms  of  De- 

fence  and  Peace."— Bracton.  "^^No^^*' 

"  I  request  you  to  take  care  that  the  people  be  well  Armed  and      1848. 

in  readiness  upon  all  occasions." — Queen  Elizabeth.  Conspiracy 

"  To  attack  the  lowest  among  the  people  is  to  attack  the  whole  *  Sedition. 

people." — De  Lolme. 
"  He  is  a  fool  who  knows  not  that  Swords  were  given  to  men 

that  none  might  be  Slaves  but  such  as  know  not  how  to  use 

them." — Algernon  Sidney. 

'  One  Penny  will  be  charged  at  the  Door  to  defray  expenses. 
'  Alex.  Elder,  Printer,  243  High  Street.' 

and  by  then  and  there  openly  reading  the  said  placard,  or  causing  the 
same  to  be  openly  read  in  the  presence  and  hearing  of  a  great  number 
of  persons,  all  or  many  of  them  calling  themselves  Chartists,  then  and 
there  convened  and  assembled  as  members  of  a  body  calling  itself  a 
National  Guard,  or  for  the  formation  or  enrolment  of  such  National 
Guard ;  and  the  said  James  Gumming  did,  then  and  there,  his  said 
compassing,  imagination,  invention,  device,  or  intention,  or  one  or 
more  of  them,  wickedly  and  feloniously,  farther  express,  utter,  and 
declare,  by  taking  the  chair  and  presiding  over  the  proceedings  of  the 
said  meeting  of  persons  convened  and  assembled  as  aforesaid,  being 
members  of,  or  met  for  the  formation  or  enrolment  of  the  said  National 
Guard ;  and  by  then  and  there,  or  at  some  other  time  within  the  pe- 
riod above  libelled,  and  at  some  other  place  to  the  prosecutor  unknown, 
joining  the  said  National  Guard,  and  enrolling  himself  as  a  member, 
or  otherwise  becoming  a  member  thereof ;  the  said  body  calling  itself  a 
National  Guard  being,  and  by  him  known  to  be,  an  illegal  and  dis- 
loyal body,  formed  or  enrolled  for  the  illegal  and  disloyal  purposes  of 
subverting  by  force  and  violence  the  laws  and  government  of  the 
realm,  and  of  compelling  by  force  and  violence  an  alteration  of  the 
laws  and  constitution  of  the  realm,  and  of  procuring  and  using  guns 
and  pikes  or  other  arms  for  the  levying  of  war  against  Us  within  the 
realm,  as  aforesaid,  in  order  by  force  or  constraint  to  compel  Us  to 
change  Our  measures  or  counsels,  and  in  order  to  put  force  or  con- 
straint upon,  and  in  order  to  intimidate  or  overawe,  both  Houses  or 
either  House  of  Parliament,  or  for  one  or  more  of  the  said  illegal  and 
disloyal  purposes ;  and  it  was  within  the  said  room  or  hall,  and  by  all, 
or  one  or  more,  of  the  said  persons  convened  and  assembled  as  afore- 
said, then  and  there,  openly  proposed  or  resolved  in  presence  and 
hearing  of  the  said  James  Gumming,  and  with  his  sanction  as  chair- 


24  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  man,  that  the  members  of  the  said  body  callbg  itself  the  National 
Gumming  ^"^'*^  should  provide  themselves  with  guns  and  pikes  or  other  arms, 
John  Grant  and  it  was  intended,  and  by  him  known  to  be  intended,  to  use  the  said 
and  Others.  ^^^^  ^^  j  ^jj^gg  ^j.  ^^-^ei  arms,  for  the  illegal  and  disloyal  purposes 
High  Court,  aforesaid,  or  one  or  more  of  them;  and  an  individual  then  and  there 

ma.      present,  whose  name  is  to  the  prosecutor  unknown,  did,  then  and  there, 

;; : and  in  presence  and  hearing  of  the  said  James  Gumming,  and  with  his 

Conspiracy  '^  °  ■,         ■,        i      j^     e       •  i.  i 

&  Sedition,  sanction  as  chairman,  propose  and  undertake  to  furnish  or  supply 

guns,  or  guns  and  bayonets,  to  those  ^who  desired  them  ;  and  the  said 
James  Gumming  did,  as  chairman  aforesaid,  express  or  indicate  his 
approval  and  recommendation  of  such  proposal  and  undertaking,  and 
did  state  from  the  chair  of  the  said  meeting,  that  pikes  would  be  sup- 
plied to  those  who  preferred  them ;  and  the  said  James  Gamming  did, 
on  or  about  the  22d  day  of  July  1848,  or  on  one  or  other  of  the  days 
of  that  month,  and  within  or  near  the  house  in  Duncan  Street,  Drum- 
mond  Place,  Edinburgh,  then  and  now  or  lately  occupied  by  him,  or 
at  some  other  time  and  place  to  the  prosecutor  unknown,  his  said  com- 
passing, imagination,  invention,  device,  or  intention,  or  one  or  more  of 
them,  wickedly  and  feloniously,  farther  express,  utter,  and  declare,  by 
writing,  subscribing,  and  addressing,  to  '  M'  James  Smith  27  Bmns- 
'  wick  Street  Glasgow,'  a  letter  in  the  following  or  similar  terms  : — 

'  Edinburgh,  July  22,  1848, 
'  14  Duncan  S'.  Drummond  Place. 
'  Dear  Smith, 

'  I  am  in  receipt  of  yours  of  the  13*,  and  take  the  earliest  oppor- 
'  tunity  of  communicating  the  information  desired.  Although  I  might 
'  have  informed  you  generally  as  to  the  state  and  spirit  abroad  imme- 
'  diately,  I  deferred  writing  until  I  could  procure  correct  accounts 
'  from  the  members  and  officers  of  the  various  clubs  and  political 
'  bodies  intending  to  arm.  There  are  a  great  many  clubs,  in  fact  they 
'  are  springing  up  nightly,  there  is  a  sort  of  club  mania.  The  follow- 
'  ing  are  the  names  and  numbers  of  the  clubs  which  are  increasing 
'  weekly:  Mitchell  Club,  56.  Burn's  Club,  25.  Muir  Club,  200. 
'  Baird  and  Hardie  Club,  20.  Gerald  Club,  26.  O'Connor  Club,  12. 
'  Washington  Club,  25.  Emmet  Club,  I  have  not  yet  ascertained  the 
'  number.  Besides  the  Clubs  there  is  the  National  Guard  which 
'  numbers  500,  making  a  total  of  8C4  men  besides  the  Emmet  Club. 
'  The  National  Guard  have  given  an  order  for  30  muskets  with  bay- 
'  onets,  but  a  great  many  have  provided  themselves  with  arms ;  those 
'  ordered  are  for  those  who  pay  in  weekly  contributions  for  that  pnr- 
'  pose.  Some  of  the  Clubs  have  purchased  a  few  muskets  at  £l  each 
'  which  have  been  shewn  at  the  meetings.  I  do  not  know  of  more 
'  than  8  as  yet ;  but  there  is  an  arms  fund  in  most  of  the  Clubs  for 
'  those  who  are  not  able  to  purchase  them  at  once.     When  the  Guard 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  25 

are  supplfed  with  the  arms  ordered,  I  may  say  safely  there  will  be     No.  6. 
a  100  armed.    Aa  to  the  feeling  which  pervades  the  town,  it  is  de-  Cy^^f^e 
cidedly  warlike  at  the  present  time ;  the  general  topic  of  conversa-  John  Grant 
tion  is  arming,  street  fighting,  &c.     The  Irish  papers,  the  Felon  par-  and  Others. 
ticularly,  is  read  with  avidity,  and  hailed  with  rapture  and  enthusi-  High  Court, 
asm.     Never  since  I  took  any  part  in  the  movement,  which  is  now      iglg 


nearly  20  years,  was  there  such  a  strong  feeling  of  resistance  to  the 
'  government.  In  39  I  was  connected  a  defensive  means  associa-  &"se^'ftion. 
'  tion,  but  the  spirit  evaporated  before  a  single  gun  was  subscribed 
'  for.  It  is  very  different  now.  The  desire  to  procure  and  possess 
'  arms  is  gaing  strength  every  day ;  whether  they  would  fight  or  not 
'  it  is  difficult  to  answer.  I  know  that  an  Edinburgh  mob  generally 
'  fly  if  they  are  attacked ;  but  having  arms  and  some  idea  how  to  make 
'  use  of  them  inspire  confidence.  I  shall  be  glad  to  hear  how  matters 
'  stand  in  Liverpool  and  Glasgow  as  soon  as  convenient.  In  the 
'  meantime, 

'  I  am,  Dear  Sir, 

'  Your's  sincerely, 

'   J.  Cn.MMING.' 

'  Mr  James  Smith, 
'  Glasgow.' 

and  on  the  day,  or  soon  after  the  day  above  libelled,  as  the  date  of  the 
said  letter,  putting  the  said  letter  addressed  as  aforesaid,  or  causing  the 
same  to  be  put,  into  the  Post-Office,  Edinburgh,  or  into  one  or  other  of 
the  Receiving-Offices  of  the  Post-Office,  Edinburgh,  intending  the  said 
letter  to  be  transmitted  to,  and  to  be  received  by,  James  Smith,  now 
or  lately  residing  in  or  near  Rotten  Row  Street,  Glasgow,  and  now  or 
lately  a  porter  or  servant  in  the  employment  of  Messrs  Campbell  and 
Cruden,  now  or  lately  commission-agents  in  or  near  Brunswick  Street 
of  Glasgow,  or  to  be  transmitted  to,  and  received  by,  some  other  per- 
son of  the  name  of  James  Smith  to  the  prosecutor  unknown  ;  and  the 
said  letter  having  been  transmitted  through  the  Post-Office  to  Glasgow, 
was,  on  or  about  the  24th  day  of  July  1848,  delivered  by  mistake  to 
James  Smyth,  writer,  or  writer's  clerk,  son  of,  and  now  or  lately  re- 
siding with,  William  Smyth,  writer  in  Glasgow,  and  now  or  lately 
carrying  on  business  at  or  near  No.  29  Brunswick  Place  or  Brunswick 
Street,  Glasgow,  and  now  or  lately  residing  in  or  near  Abbotsford 
Place,  in  or  near  Glasgow,  instead  of  being  delivered  to  the  person  for 
whom  it  was  by  the  said  James  Gumming  intended ;  and  the  said 
James  Gumming  did  write,  subscribe,  address,  and  transmit,  through 
the  Post-Office  as  aforesaid,  the  said  letter,  with  intent  thereby  to 
serve  or  promote  the  said  illegal  and  disloyal  purposes  above  libelled, 
or  one  or  more  of  them,  of  himself  and  his  associates  in  the  said  illegal 
and  disloyal  body  calling  itself  a  National  Guard:  Likeas,  in  the 


26  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  months  of  April,  May,  Jane,  and  July,  1848,  above  libelled,  or  one  or 
Camming,  ™°''®  "^  *'i«™»  ^^^  particular  time  being  to  the  prosecutor  unknown, 
John  Grant  and  within  or  near  the  room  or  hall  situated  in  or  near  Carrubber's 
and  Others,  qj^^^^  gj^j^  g^j.^^^,^  Edinburgh,  commonly  called  Painters'  Hall,  for- 
High  Court,  merly  occupied  as  a  place  of  meeting  by  the  Edinburgh  Branch  of  the 
1848.'    National  Chartist  Association,  and  within  or  near  the  premises  situ- 

r —  ated  in  or  near  the  High  Street  of  Edinburgh,  then  and  now  or  lately 

&  Sedition  occupied  as  the  office  of  the  North  British  Express  newspaper,  and 
within  or  near  the  room  or  hall  abpve  libelled  in  or  near  Infirmary 
Street  aforesaid,  and  within  the  house  in  Duncan  Street,  Drummond 
Place,  Edinburgh,  then  and  now  or  lately  occupied  by  him,  or  in  one 
or  more  of  the  said  places,  or  at  some  other  time  within  the  period 
above  libelled,  and  at  some  other  place,  to  the  prosecutor  unknown,  the 
said  James  Gumming  did,  wickedly  and  feloniously,  combine  and  con- 
spire with  Henry  Ranken,  now  or  lately  residing  in  or  near  Bishop's 
Close,  High  Street  of  Edinburgh  ;  Robert  Hamilton,  now  or  lately  re- 
siding in  or  near  Gilmore  Street,  Simon  Square,  Edinburgh ;  John 
Grant,  printer,  now  or  lately  residing  in  or  near  Munro's  Close,  Ca- 
nongate  of  Edinburgh ;  Archibald  Walker,  now  or  lately  residing  in 
or  near  Bread  Street,  Edinburgh ;  Peter  Duncan,  a  mason,  now  or 
lately  working  in  or  near  Dalkeith,  in  the  county  of  Edinburgh,  and 
now  or  lately  residing  in  or  near  Edinburgh ;  the  said  James  Smith, 
now  or  lately  residing  in  or  near  Rotten  Row  Street,  Glasgow,  or  with 
one  or  more  of  them,  and  with  other  persons  to  the  prosecutor  un- 
known, calling  themselves  Chartists,  to  efiFect  an  alteration  of  the  laws 
and  constitution  of  the  realm,  and  particularly  of  the  constitution  of 
the  Commons'  House  of  Parliament,  the  qualification  for  the  franchise 
required  by  law  in  the  election  of  members  of  Parliament,  the  duration 
of  Parliaments,  and  other  such  changes  in  the  laws  and  constitution  of 
the  realm;  desired  and  aimed  at  by  him  and  his  associates,  and  gene- 
rally by  the  persons  calling  themselves  Chartists ;  and  the  said  altera- 
tions of  the  laws  and  constitution  of  the  realm  he  and  his  said  associ- 
ates did  combine  and  conspire  to  effect,  not  peaceably,  lawfully,  and 
loyally,  but  by  force  and  violence,  or  by  armed  resistance  to  lawful 
authority ;  and  the  said  James  Gumming  did,  on  or  about  the  28th  day 
day  of  June  1848,  and  within  or  near  the  room  or  hall  above  libelled, 
situated  in  or  near  Infirmary  Street  aforesaid,  wickedly,  feloniously, 
and  seditiously,  attend  and  take  the  chair,  and  preside  over  the  pro- 
ceedings of  the  meeting  above  libelled  of  a  great  number  of  persons 
convened  and  assembled  as  above  libelled,  as  members  of  or  for  the 
formation  and  enrolment  of  the  said  body  calling  itself  a  National 
Guard,  the  same  being,  and  by  him  known  to  be,  an  illegal  and  dis- 
loyal body,  formed  or  enrolled  for  the  illegal  and  disloyal  purposes 
above  libelled,  or  one  or  more  of  them ;  and  he  did,  then  and  there 
circulate  or  distribute,  or  cause  to  be  circulated  or  distributed  and  did 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  27 

openly  read,  or  cause  to  be  read,  in  the  presence  and  hearing  of  the      No.  6. 
said  meeting,  the  printed  or  written  placard  above  libelled ;  and  he  did,  q^^^^„ 
then  and  there,  while  in  the  chair  of  said  meeting,  hear,  permit,  and  John  Grant 
sanction,  a  proposal  or  resolutiou  to  the  effect,  that  the  members  of  ana  Others. 
the  Said  National  Guard  should  provide  ^  themselves  with  guns  and  High  Court, 
pikes  or  other  arms,  which  were  intended,  and  by  him  known  to  be       1848." 

intended,  to  be  used  for  the  illegal  and  disloyal  purposes  above  libelled,  t; : 

or  one  or  more  of  them ;  and  he  did,  then  and  there,  hear,  permit,  and  &  Sedition, 
sanction,  a  proposal  and  undertaking  to  furnish  or  supply  guns,  or 
guns  and  bayonets,  to  -those  who  desired  them ;  and  the  said  James 
Gumming,  in  the  presence  and  hearing  of  the  said  meeting,  and  in  an- 
swer to  a  remark  or  question  by  some  person  to  the  prosecutor  un- 
known, then  and  there  present,  whether  those  who  wished  pikes  would 
be  supplied  with  pikes,  did,  then  and  thelire,  openly  and  seditiously, 
state  or  declare  from^the  chair,  that  pikes  would  be  supplied  to  those 
who  preferred  them,  or  he  did,  then  and  there,  use  words  of  the  same 
meaning  and  effect :  And  farther,  the  said  James  Gumming  did,  on 
or  about  the  22d  day  of  July  1848,  or  on  one  or  other  of  the  days  of 
that  month,  and  within  or  near  the  house  in  Duncan  Street  above 
libelled,  occupied  by  him,  or  at  some  other  time  and  place  to  the  pro- 
secutor unknown,  wickedly,  feloniously,  and  seditiously,  write,  sub- 
scribe, address,  and  transmit,  through  the  Post-Office  as  above  libelled, 
the  letter  above  libelled,  intending  the  same  to  be  transmitted  to,  and 
received  by,  James  Smith,  porter  or  servant  aforesaid,  or  some  other 
person  of  the  name  of  James  Smith  to  the  prosecutor  unknown ;  and 
the  said  letter  was  transmitted  through  the  Post-OfiSce,  and  delivered 
by  mistake  as  aforesaid,  to  the  said  James  Smyth,  writer,  or  writer's 
clerk  aforesaid. 

John  Grant,  Printer,  Henry  Ranken,  Editor,  or 
Joint  Editor  of  the  North  British  Express  Newspaper, 
and  Robert  Hamilton,  Tailor,  were  charged  : 

That  Albeit,  by  the  laws  of  this  and  of  every  other  well-gove,rned 
realm,  the  wickedly  and  feloniously  Conspiring  to  Effect  an  Alteration 
of  the  Laws  and  Gonstitution  of  the  Realm,  by  force  and  violence,  or 
by  armed  resistance  to  lawful  authority ;  as  also.  Sedition,  are  crimes 
of  an  heinous  nature,  and  severely  punishable  :  Yet  true  it  is  and 
OP  VERITY,  that  you  the  said  John  Grant,  Henry  Ranken,  and  Robert 
Hamilton  are,  all  and  each,  or  one  or  more  of  you,  guilty  of  the  crimes 
above  libelled,  or  of  one  or  other  of  them,  actors  or  actor,  or  art  and 
part :  In  so  far  as,  in  the  months  of  March,  April,  May,  June,  and 
July,  1848i  or  one  or  more  of  them,  the  particular  date  being  to  the 
prosecutor  unknown,  and  within  or  near  a  room  or  hall  in  or  near 
Carrubber's  close,  High  street  of  Edinburgh,  commonly  called  '  Pain- 


28  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     ter's  Hall,'  formerly  occupied  as  a  place  of  meeting  by  the  Edinburgh 

James     Branch  of  the  National  Chartist  Association,  and  within  or  near  the 

J^hn  Grant  premises  in  or  near  the  High  street  of  Edinburgh,  now  or  lately  occu- 

and  Others.  pied.by  the  publishers  of  the  North  British  Express  newspaper,  and 

High  Court,  within  or  near  the  room  or  hall  commonly  called  the  Trades'  Hall,  m 

Nov.  7.     or  near  Infirmary  street,  Edinburgh,  and  within  or  near  a  room  or  hall 

'"*"•      in  or  near  Adam  square,  Edinburgh,  and  on  or  near  the  Calton  Hill, 

Conspiracy  Edinburgh,  or  at  one  or  more  of  the  said  places,  or  at  some  other  place 
&  aedition.  °  '  '■  ii,        -j    t  i, 

in  or  near  Edinburgh  to  the  prosecutor  unknown,  you  the  said  John 

Grant,  Henry  Ranken,  and  Eobert  Hamilton  did,  all  and  each,  or  one 
or  more  of  you,  wickedly  and  feloniously,  combine  or  conspire  with 
each  other,  and  with  Archibald  "Walker,  now  or  lately  residing  in  or 
near  Bread  street  of  Edinburgh;  Peter  Duncan,  a  mason,  now  or 
lately  working  at  or  near  Dalkeith,  in  the  county  of  Edinburgh,  now 
or  lately  residing  in  or  near  Edinburgh ;  James  Gumming,  shoemaker, 
now  or  lately  residing  in  or  near  Duncan  street,  Drummond  place  of 
Edinburgh;  or  with  one  or  more  of  them,  and  with  other  persons  to 
the  prosecutor  unknown,  calling  themselves  Chartists,  to  effect  an 
alteration  of  the  laws  and  constitution  of  the  realm,  and  particularly 
of  the  constitution  of  the  Commons'  House  of  Parliament,  the  quali- 
fication for  the  franchise  required  by  law  in  the  election  of  members  of 
Parliament,  the  duration  of  Parliaments,  and  other  such  changes  in  the 
laws  andj^constitution  of  the  realm,  desired  and  aimed  at  by  you  and 
your  associates,  and  generally  by  the  persons  calling  themselves  Char- 
tists ;  and  the  said  alterations  of  the  laws  and  constitution  of  the 
realm  you  and  your  said  associates  did  combine  and  conspire  to  effect, 
not  peaceably,  lawfully,  and  loyally,  but  by  force  and  violence,  or 
by  armed  resistance  to  lawful  authority  ;  and  you  the  said  John 
Grant,  Henry  Kanken,  and  Robert  Hamilton  did,  all  and  each,  or 
one  or  more  of  you,  on  or  about  the  25th  day  of  April  1848,  or  ou 
one  or  other  of  the  days  of  tha;t  Inonth,  or  of  March  immediately  pre- 
ceding, or  of  May  immediately  following,  and  within  or  near  the  pre- 
mises aforesaid,  occupied  by  the  publishers  of  the  North  British 
Express,  or  at  one  or  other  of  the  places  above  libelled  ;  and  again  on 
or  about  the  28th  day  of  April  1848,  or  on  one  or  other  of  the  days  of 
that  month,  or  of  March  immediately  preceding,  or  of  May  immediately 
following,  and  within  or  near  the  room  or  hall  situated  in  Adam 
Square  aforesaid,  or  at  one  or  other  of  the  places  above  libelled, 
wickedly,  feloniously,  and  seditiously,  resolve  and  agree  to  form,  or 
cause  and  procure  to  be  formed,  a  body,  to  be  called  a  National 
Guard,  and  to  be  provided  with  arms,  to  be  used  for  the  illegal  and 
seditious  purpose  of  effecting,  by  force  and  violence,  or  by  armed  re- 
sistance to  lawful  authority,  the  said  alterations  of  the  laws  and  con- 
stitution of  the  realm,  or  one  or  more  of  them ;  and  you  did,  all  and 
each,  or  one  or  more  of  you,  become  a  member  of  the  said  body  calling 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  29 

itself  the  National  Guard,  knowing  the  same  to  be  an  illegal  body,      fJo.  6. 
formed  for  the  said  illegal  and  seditious  purposes :   Further,  you  the     Ja™es 
said  John  Grant,  Henry  Ranken,  and  Robert  Hamilton  did,  on  or  John  (Jran't 
about  the  12th  day  of  June  1848,  or  on  one  or  other  of  the  days  of  that  andOthers^ 
month,  or  of  May  immediately  preceding,  or  of  July  immediately  fol-  High  Court, 
lowing,  attend  a  public  meeting  of  a  great  number  of  persons  convened    ■  jo^'o 

and  assembled  on  Bruntsfield  Links,  near  Edinburgh,  by  or  in  conse ; 

quence  of  a  printed , placard,  headed  'Great  Demonstration  of  the  ^g^jtion. 
'  Trades  of  Edinburgh  and  Leith  to  refute  the  statement  of  Lord  John 
'  Russell,  that  the  people  were  not  wanting  any  reform,  and  to  ex- 
'  press  their  determination  not  to  rest  satisfied  until  the  principles  of 
'  the  people's  Charter  become  the  Law  of  the  Land.'  And  you,  the 
said  John  Grant  did,  then  and  there,  take  the  chair  of,  and  preside 
over,  the  proceedings  of  the  said  meeting,  and  you  did,  then  and  there, 
advise  and  exhort  the  persons  there  convened  and  assembled  as  afore- 
said to  organise  themselves  into  Clubs  and  Sections  for  the  more  effec- 
tual prosecution  of  the  objects  of  the  Chartist  body :  And  you  the 
said  Henry  Ranken  did,  then  and  there,  address  the  said  meeting  con- 
vened and  assembled  as  aforesaid,  and  you  did,  then  and  there,  openly 
and  seditiously,  move  a  resolution,  in  the  following  or  similar  terms : — 
'  We  the  inhabitants  of  Edinburgh  and  Leith,  in  public  meeting  as- 
'  sembled,  are  satisfied  of  the  lamentable  ignorance,  or  wicked,  mali- 
'  cious  falsehood  of  Lord  John  Russell,  in  stating  that  the  people 
'  of  this  country  do  not  want  reform  of  any  sort  whatever ;  and  we 
'  therefore  declare,  that  it  is  our  intention  not  to  rest  satisfied,  nor  to 
'  cease  agitating,  until  the  people's  Charter  is  the  law  of  the  land, 
'  being  fully  convinced  that  justice  can  neither  be  obtained  nor  pre- 
'  served  unless  the  people  are  put  in  possession  of  their  rights,  which 
'  are  clearly  laid  down  in  that  document :  We  are  farther  resolved  to 
'  exert  ourselves  to  the  utmost  of  our  power  to  promulgate  our  prin- 
'  ciples  in  every  quarter  of  the  land,  and  thereby  create  a  feeling  that 
'  will  ultimately  compel  our  oppressors  to  relinquish  their  grasp,  which 
'  we  are  satisfied  will  be  ere  long ;  for  we  are  determined  that  while 
'  there  is  misery  for  the  inmates  of  the  cottage,  there  shall  be  no  peace 
'  for  the  inmates  of  the  hall ;'  and  in  support  of  the  said  resolution, 
you  the  said  Henry  Ranken  did,  then  and  there,  openly  and  seditiously, 
and  in  presence  of  the  said  meeting,  say,  that  '  it  was  a  well-known 
'  fact  that  the  police,  the  special  constables,  and  the  military,  were 
'  tainted  with  the  principles  of  the  Chartists  ;  but  although  these  men 
'  were  true,  they  would  not  forget  the  advance  of  enlightenment 
'  among  the  working  classes,  that  the  science  of  chemistry  had  entered 
'  the  workshop,  and  that  working  men  could  provide  themselves  with 
'  as  deadly  weapons  as  Warner's  long  range ;  and  if  it  was  to  be  a 
'  struggle  for  life  and  death,  if  it  was  to  be  destruction,  then  you  hoped 
'  and  trusted  that  the  working  men  would  only  be  true  to  themselves, 


30  CASES  BEFORE  THE  HIGH  COURT 

No.  6.      '  and  only  abstain  from  all  acts  of  aggression  until  they  were  roused 
CumnTinff   '  V  ^^^  oppression  of  their  oppressors,  and  when  they  began  the  work, 
John  Grant  '  may  they  do  it  .well;'  and  you  the  said  Henry  Ranken  did,  then 
and  Others.  ^^^^  there,  urge   and  advise  the  persons  convened  and  assembled  as 
High  Court-  aforesaid  at  the  said  meeting,  to  organise  themselves  into  clubs  and 
184*8.'     sections  for  the  more  efltectual  prosecution  of  the  objects  of  the  Chartist 
~ — : — ~  body;  and  you  did,  further,  openly  and  seditiously,  and  in  presence  of 
&  Sedition,  the  said  meeting,  say,  '  If  the  leaders  of  the  people  are  to  be  incarce- 
f  rated,  if  the  people  are  to  suffer  this  tamely,  if  those  who  have  an 
«  interest  in  keeping  you  down  feel  that  you  will  quietly  submit,  then 
«  they  are  secure ;  but  if  the  working  men  look  to  themselves,  and  if 
•  they  look  to  those  who  place  themselves  in  the  front  of  the  fray,  if 
'  they  look  to  those  who  are  willing  to  brave  every  danger,  then  I  say 
i  the  working  men  ought  to  consider  what  means  should  be  taken  to 
«  protect  these  men  :  Let  the  property  of  the  country  be  hostages  in 
'  the  hands  of  the  people  for  the  safety  of  the  leaders  of  the  people ;' 
and  again  you  did  further  say,  '  It  has  been  said  that  the  French  are 
'  inventive,  but  that  the  British  have  this  faculty,  that  upon  all  the 
'  French  inventions  they  improve.      Should  the  authorities  drive  the 
'  people  into  a  revolution,  then  I  hope  the  people  will  improve  upon 
'  the  French  invention  of  a  republic ;'  or  you  did,  on  the  occasion 
above  libelled,  use  words  of  the  import  and  effect  above  set  forth :  And 
you  the  said  Robert  Hamilton  did,  time  and  place  last  above  libelled,  ad- 
dress the  said  meeting,  and  you  did,  then  and  there,  openly  and  sedi- 
tiously, and  in  the  presence  of  the  said  meeting,  urge  aud  advise  the 
persons  then  and  there  convened  ,and  assembled  as  aforesaid, '  to  orga- 
'  nise  themselves  into  clubs  and  sections,  and  to  provide  themselves 
'  with  guns  and  bayonets,'  in  order  to  carry  into  effect  the  said  objects 
of  yourself  and  your  associates;  and  you  did  then  and  there  say, 
'  For  the  love  of  God  prepare  yourselves  with  guns  and  bayonets,  as 
'  the  day  is  not  far  distant  when  you  may  require  them ;'  or  you  did, 
then  and  there,  use  words  of  the  import  and  effect  above  set  forth :  And 
yon  the  said  John  Grant  did,  then  and  there,  as  Chairman  of  the  said 
meeting,  sanction  the  said  resolution,  and  did  put  the  same  to  the 
meeting  and  did  declare  it  to  be  passed  or  adopted  ;  And  you  did,  as 
Chairman  aforesaid,  hear,  permit,  and  sanction  the  seditious  speeches 
above  libelled  of  the  said  Henry  Ranken  and   Robert  Hamilton,  and 
you  did  not  call  them  to  order,  or  stop  or  attempt  to  stop  them,  or  ex- 
press any  dissent  from,  or  disapprobation  of,  the  said  speeches  :  And 
your  conduct  and  speech  as  aforesaid  in  the  Chair  of  the  said  meeting 
were  seditious,  and  were  intended  and  calculated  to  excite  popular 
disaffection,  commotion,  and  violence,  and  resistance  to  lawful  autho- 
rity :  FuBTHBR,  on  or  about  the  19th  day  of  June  1848,  or  on  one  or 
other  of  the  days  of  that  month,  or  of  May  immediately  preceding,  or 
of  July  immediately  following,  and  within  or  near  Waterloo  Rooms, 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  31 

near  the  Regent  Bridge,  Edinburgh,  you  the  said  Henry  Ranken  did,      No.  6. 
openly  and  seditiously,  and  in  the  presence  of  a  large  number  of  per-  q„^^^„„ 
sons,  all  or  many  of  them  calling  themselves  Chartists,  then  and  there  John  Grant 
assembled,  urge  and  recommend  the  meeting  to  '  organise  into  clubs        Others. 
'  and  sections,'  for  the  more  effectual  prosecution  of  the  objects  of  the  High  Court. 
Chartist  body,  and  '  to  provide  themselves  with  arms  in  case  they       i848.' 

might  require  to  use  them  ;'  or  you  did,  then  and  there,  use  words  of : 

the  import  and  effect  above  set  forth  :  Further,  on  or  about  the  24th  &  Sedition, 
day  of  July  1848,  or  on  one  or  other  of  the  day«  of  that  month,  or  of 
June  immediately  preceding,  or  of  August  immediately  following,  and 
on  or  near  the  Calton  Hill,  Edinburgh,  you  the  said  Henry  Ranken 
and  Robert  Hamilton  did,  both  and  each,  or  one  or  other  of  you,  attend 
a  public  meeting  of  persons  then  and  there  convened  and  assembled  ; 
and  you  the  said  Henry  Ranken  did,  then  and  there,  address  the  said 
meeting,  and  you  did,  then  and  there,  openly  and  seditiously,  and  in 
presence  of  the  said  meeting,  say,  in  reference  to  the  illegal  and  cri- 
minal proceedings  of  certain  evil-disposed  persons  in  Ireland,  that  you 
considered  that  '  the  people  of  Ireland  were  justified  in  their  determi- 
'  nation  to  resist  to  the  death  the  oligarchy  who  ruled  them,'  and  you 
did  express  your  hope  or  prayer  that  '  the  God  of  battles  would  smile 
'  on  the  oppressed,  and  enable  them  to  improve  the  victory  they  were 
'  sure  to  win ;'  and  you  the  said  Henry  Ranken  did  further,  then  and 
there,  say,  that  '  If  the  power  of  Great  Britain  was  brought  to  bear 
'  against  the  people  of  Ireland,  then  the  people  of  Scotland  must 
'  endeavour  to  distract  the  attention  of  the  Government ;' and  you 
did,  then  and  there,  recommend  the  organisation  of  clubs  and  sections, 
for  the  more  effectual  prosecution  of  the  objects  of  the  Chartist  body, 
and  you  did  state  that  certain  clubs  had  been  already  formed  in  Edin- 
burgh, for  the  promotion  of  the  objects  desired  by  the  Chartist  body, 
and  you  did  name  certain  of  these  clubs,  as  the  '  Washington  Club,' 
the  '  Mitchell  Club,'  the  '  Faugh-a-Balloch  Club,'  the  '  Muir  Club,' 
the  '  Wallace  Club,'  the  '  William  Tell  Club,'  and  others ;  and  you 
did  urge  the  meeting  to  join  one  or  other  of  the  said  clubs,  or  you  did, 
then  and  there,  use  language  of  the  import  and  effect  above  set  forth  : 
And  you  the  said  Robert  Hamilton  did,  time  and  place  last  above 
libelled,  address  the  said  meeting,  and  you  did,  then  and  there,  openly 
.  and  seditiously,  and  in  presence  of  the  said  meeting,  say,  that  the  Irish 
people  would  require  help, — that  pikes  were  easily  made, — and  that 
the  young  and  spirited  men  of  Scotland  should  go  to  Ireland  and  help 
the  Irish  people ;  and  that  at  one  time  you  would  have  been  satisfied 
with  the  Charter  as  the  law  of  the  land,  but  that  now  you  would  accept 
of  nothing  else  than  a  republic,  and  that  they  would  soon  obtain  one, 
or  you  did,  then  and  there,  use  words  of  the  import  and  effect  above 
set  forth ;  and  the  whole  or  part  of  the  language  above  set  forth  as 


32  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  used  by  you  the  said  John  Orant,  Henry  Ranken,  and  Robert  Hamil- 
Cumming  ^°^  respectively,  aa  above  libelled,  was  intended  and  calculated  to 
John  Grant  excite  popular  disaffection,  commotion,  and  violence,  and  resistance  to 

"^i^^-  lawful  authority. 
High  Court- 
Nov.  7. 

^"''^-         On  the  diet  against  Gumming  being  called,  Looan  ob- 
&  SeSn.  jected  to  the  relevancy,  on  two  grounds,  1st,  In  respect 
to  the  statutory  offence,  that^  no  overt  acts  were  suf- 
ficiently set  forth.     The  object  of  the  late  statute  was 
twofold, — 1st,  To  subject  a  party,  in  respect  of  certain 
acts,  to  a  charge  of  felony  only,  instead  of  treason ;  and, 
2d,  To  constitute  advised  speaking  sufiicient  to  complete 
the  offence.     The  acts  charged  against  the  pannel  were 
high  treason  under  36th  Geo.  III.  c.  7,  which  was  re- 
pealed by  the  late  statute.     Treason  could  only  be  proved 
by  overt  acts  (Hume,  vol.  i.  p.  514),  and  there  was  a  ne- 
cessity in  all  cases  of  treason  to  libel  the  overt  acts 
specifically  in  connection  with  the  alleged  treasonable 
intent.     That  had  not  been  done  in  the  case  before  the 
Court.     It  might  be  conceded,  for  a-rgument's  sake,  that 
sufficient  had  been  stated  for  constituting  an  offence  under 
the  statute,  if  properly  laid ;  but  the  prosecutor,  after 
alleging  a  substantive  antecedent  design,  as  far  back  as 
the  month  of  April,  proceeded,  in  libelling  the  overt  acts, 
at  once  to  28th  June,  without  alleging  that  this  was  done 
in  pursuance  of  the  intent  before  mentioned. 

The  Lord  Justice-Clerk  quoted  the  indictment  in 
Thistlewood's  case,  to  show  that  such  strictness  as  was 
contended  for  on  behalf  of  the  pannel  was  unknowTi  in 
English  practice. 

Logan  departed  fi-om  the  objection,  which  was  ac- 
cordingly repelled. 

He  then  objected  to  the  first  charge  as  laid  at  common 
law  for  Conspiracy.  The  mode  adopted  was  too  vague. 
It  ought  to  have  been  alleged  in  the  minor  that  the  va- 
rious acts  set  forth  in  support  of  the  charge,  had  been 
done  or  said  in  pursuance  of  the  common  design  charged 
in  the  major. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  33 

The  Lord  Justice-Clerk — It  would  have  been  better    ^°^^ 
had  the  mode  you  now  suggest  been  adopted ;  but  on  the  Camming, 

i   ,  .    .     ,.  ....         1    1     ,   ,1      1      1     JohnGrant 

seventh  page  of  this  indictment,  it  is  stated  that  the  body  and  others. 
calling  itself  the  National  Guard,  and  over  a  meeting  of  High  court, 
which  the  pannel  is  said  to  have  presided,  '  was  known  ^sTs!' 
•  by  him  to  be  an  illegal  and  disloyal  body,  formed  and  conspiracy 
'  enrolled  for  the  illegal  and  disloyal  purposes  above  libel-  ^  s^'^'*'""- 
'  led,  or  one  or  more  of  them.'     Surely  that  is  sufficient. 

The  objection  was  repelled. 

He  then  objected  that  the  common  law  charges  were 
incompetent.  But  for  the  late  statute,  the  acts  charged 
against  the  pannel  would  have  amounted  to  high  treason ; 
and  that  statute  having  reduced  the  offence  to  one  of 
felony,  it  must  now  be  tried  exclusively  as  a  contraven- 
tion of  the  act. 

The  Court  thought  this  'objection  so  important,  that,  * 
on  the  suggestion  of  the  Lord  Advocate,  with  the  con- 
currence of  the  prisoner's  Counsel,  they  delayed  the  case 
for  two  days,  in  order  that  the  case  might,  together  with 
those  of  Grant,  Ranken,  and  Hamilton,  be  heard  before 
the  whole  Bench.  The  Lord  Justice-Clerk  in  the 
meantime  directed  the  attention  of  the  Crown  to  the 
mode  in  which  it  was  stated  that  Gumming  had  incurred 
guilt,  by  wickedly  and  feloniously  expressing,  uttering, 
and  declaring  by '  writing,  subscribing,  and  addressing'  to 
'  Mr  James  Smith,  27  Brunswick  Street,  Glasgow,  a  letter,' 
&c.  He  wished  to  know  whether  this  was  intended  to 
be  a  charge  of  publishing  under  the  late  statute,  or  whe- 
ther it  was  only  intended  as  an  overt  act  of  siedition.  If 
intended  to  support  a  charge  under  the  statute,  could 
such  charge  be  siipported  without  averring  publication 
expressly  ?  Was  the  letter  merely  intended  as  a  narra- 
tive of  the  compassings  charged,  or  was  it  intended 
to  be  proved  as  an  overt  act  ?  He  also  inquired  whether 
the  Crown  considered  the  charge  of  conspiracy,  as  laid  at 
common  law,  to  be  anything  different  from  sedition.  If 
it  was  not  different,  the  Crown  could  have  no  interest  to 


34  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    press  it.    If  different,  doubts  might  arise  as  to  its  com- 

Cumming,  petencj,  inasmuch  as  if  such  compassmgs  and  imagmmgs 

and  Other!  as  thosc  charged  against  the  pannels  should  be  sufficiently 

HighCour^.  proved  by  overt  acts,  the  charge  might  amount  to  high 

^lail'    treason,  notwithstanding  the  recent  statute.     There  was 

Conspiracy  HO  precedent  for  any  indictment  in  such  a  form  for 

&  Sedition,  ggjji^jojj  merely.      In  all  previous  indictments  it  was 

merely  alleged  that  the  acts  done  had  been  calculated 

and  intended  to  alienate  the  minds  of  the  subjects  or 

produce  disaffection,  &c. ;  but  the  present  charge  went  a 

great  deal  further,  in  charging  a  compassing  to  effect  an 

alteration  of  the  laws  and  constitution  of  the  realm  by 

force  and  violence.     The  question  became  very  important 

in  considering  the  application  of  Sir  William  Rae's  Act, 

whereby  the  punishment  of  transportation  was  abolished 

in  cases  of  sedition,  inasmuch  as,  if  this  was  held  to  be 

something  different,  the  Crown  might  ask  for  a  sentence 

of  transportation  ? 

The  following  Minute  was  then  given  in  by  the  pannel : 

MINUTE  FOK  JAMES  CtTMMING. 

The  pannel,  and  the  counsel  for  the  pannel,  request  the  Court  to 
delay  the  diet  for  this  trial  till  Thursday,  the  9th  of  November  1848, 
inclusive,  and  consent  that  the  intervening  period  shall  not  be  reckoned 
within  the  days  of  running  letters  of  intimation  under  the  Act  1701, 
chap.  6.  (Signed)         James  Cumming. 

A.  S.  Logan. 

Akch.  Gbahame. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  35 

Present, 
The  Lord  JusticIe-Clbrk,  ig^g  * 

Lords  Mackenzie,  Moncreipf,  Medwyn,  Cookburn,  and  Wood. 

The  diet  having  been  again  called  against  the  ,pannel     No.  6. 
Gumming,  and  the  other  pannels  having  also  surrendered,  Cumming, 

Logan  argued,  that  it  was  incompetent  to  try  the  and'others. 
offences  charged  against  the  pannels,  except  under  the  High  Court. 
recent  statute.  It  was  important  to  observe  what  were  ^jg^'s!' 
the  charges  made  ■  against  them.  It  was  alleged  that  conspiracy 
they  had  conspired  to  effect  an  alteration  Of  the  law  and  ^  ^^'^•''°"- 
constitution  by  force  and  violence,  to  intimidate  and 
overawe  Parliament ;  that  they  had  assisted  to  combine, 
and  abetted  an  illegal  force,  called  the  National  Guard ; 
the  substance  of  the  whole  being,  that  the  object  was  to 
effect  a  change  of  the  government  by  force.  The  minor 
was  the  same,  with  one  exception,  on  both  of  the  com- 
mon law  and  statutory  charges,  the  only  difference  being 
that  under  the  common  law  it  was  not  charged  that 
Cumming  had  joined  the  National  Guard.  That  was 
not  material  to  the  present  discussion,  as  the  other  of- 
fences alleged  against  the  pannels  were  relevant  to  have 
constituted  treason  under  the  common  law  of  Scotland, 
under  the  36th  Geo.  III. ;  and  were  also  relevant  to  con- 
stitute felony  under  the  late  act.  Erskine,  B.  4,  tit.  4, 
sect.  20 ;  Mackenzie  on  Criminal  Law,  JHigh  Treason, 
tit.  6;  Act  1st  Pari.  Car.  II.,  chap.  5,  vol,  ii.,  p.  138, 
small  edition.  These  were  also  identical  with  the  treason- 
able offence  in  the  law  of  England,  under  the  statute  of 
Edward  III.  Lu'ders  on  High  Treason,  p.  137 ;  State 
Trials,  vol.  vii.,  p.  961.  The  meaning  of  compassing  is 
there  defined  as  being  '  to  attempt  war.' 

Lo'rd  Justice-Clerk. — Attempting  was  doubtless 
treason  in  Scotland.  Is  compassing,  conspiring,  and  at- 
tempting in  any  way  different  from  compassing  or  con- 
spiring? 


36  CASES  BEFORE  THE  HIGH  COURT 

No.  6.        Logan. — The  difference  was,  that  before  the  Union 
Cumming,  compassing  and  conspiring  would  in  Scotland  have  been 
and  others,  high  treason,  but  in  England  could  only  have-been  proved 
High  Court,  by  overt  act,  done  in  pursuance  thereof.     Under  the  1st 
ms.'    section,  7th  Anne,  c.  21,  the  jurisdiction  of  the  Court  of 
Conspiracy  Justiciary  was  ousted,  and  the  tribunal  of  the  Grand  Jury 
&  Sedition.  ^^  established,  and  the  right  of  peremptory  challenge 
given ;  but  it  could  not  be  pretended  that,  because  of 
that  statute,  compassing  ceased  to  be  per  se  a  treason  in 
the  law  of  Scotland.      It  was  incompetent  to  try  it  as 
evidenced  by  overt  acts,  as  an  offence  of  sedition  at  com- 
mon law ;  Hume,  vol.  i.,  553.     There  was  no  instance 
between  1709  and  1795  in  which  it  had  been  held  that 
species  facti,  such  as  here  set  forth,  had  been  punishable 
otherwise  than  as  treason.     This  would  meet  the  objec- 
tion which  might  be  stated  from  the  6th  section  of  36th 
Geo.  III.J,  inasmuch  as  before  that  statute  passed,  it  must 
have  been  considered  that  the  law  of  treason,  introduced 
by  the  7th  of  Anne  ,had  merged  all  subordinate  charges. 
LoED  Justice-Clerk. — Do  you  state  that  this  would 
not  have  been  a  seditious  offence 'in  England  before  the 
passing  of  36th  Geo.  Ill  ? — And  referred  to  the  case  of 
Walker. 

Logan. — In  the  case  of  Walker,  which  led  to  the 
passing  of  that  act,  the  words  used  were  similar  to  those 
in  the  present  indictment,  State  Trials,  vol.  xxiii.  p.  1062. 
This,  however,  was  no  proof  that  the  common  law  of 
Scotland  would  have  regarded  it  in  tbe  same  light,  as  that 
was  altogether  dissimilar  to  the  common  law  of  England. 
Further,  it  was  necessary  that  each  offence  should  be 
tried  under  its  appropriate  nomen  juris ;  if  it  was  treason, 
it  was  nothing  else.  The  statute  36th  Geo.  III.  did  not 
alter  the  character  of  the  offence,  it  only  created  that 
which  was  before  merely  evidence  of  treason  into  a  sub- 
stantive treason ;  East's  Pleas  of  the  Crown,  pp.  62,  63 ; 
case  of  Hardie,  p.  278.  The  second  section  of  the  late 
statute  had  no  such  reservation  as  was  contained  in  the  6th 
section  of  6th  Geo.  III.,  and  that  statute  being  repealed 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  37 

the  reservation   therein   contained   was   repealed   also.     No.  6 
But,  farther,  the  statute  of  Victoria  contains  provisions  cumming, 
for  the  beneiit  of  parties  accused  under  it.     Under  the  fnS  Oriie™' 
4th  section  information  must  have  been  given  within  six  Hi^h  Court"' 
days  after  the  offence  was  committed,  and  a  warrant    ^j'jj^'/" 
issued  within  ten  days  thereafter,  otherwise  the  party  conspiracy 
could  iiot  be  tried  under  the  act ;  besides  which,  the  ^  Sediticn. 
party  was  entitled-to  the  benefit  of  criminal  letters,  as 
though  intimation  had  been  given  under  the  Act  1701. 
This  was  not  an  auxiliary  act,  but  a  direct  and  positive 
declaration  of  the  legislature,  as  to  what  the  offence 
should  be  considered  ;  how  and  when  it  shotild  be  tried, 
and  to  what  privileges  the  pannels  would  be  entitled. 

It  was  not,  however,  in  the  present  case  necessary  to 
push  the  argument  so  far.  Under  the  reservation  of 
36th  Geo.  III.  the  prosecutor  would  not  have  been 
entitled  to  try  both  under  the  statute  and  the  common 
law.  He  must  have  made  his  election :  and  it  was  equally 
incompetent  to  try  in  both  ways  under  this  statute. 

The  Lord  Advocate  and  Mr  Craufurd. — ^The  case 
must  be  considered  under  three  heads : — 

1.  The  common  law  of  Scotland. 

2.  As  affected  by  the  English  Treason  Acts  ;  and,. 

3.  Under  the  present  statute. 

1.  The  charge  of  conspiring,  as  here  laid,  woul&  have 
been  an  offence  at  common  law.  The  common  law 
reaches  all  criminal  acts  falling  within  the  range  of  pre- 
cedent or  known  principle.  They  were  quite  willing,  for 
the  sake  of  argument,  but  to  that  extent  only,  to  assume 
that,  in  Scotland  as  in  England,  all  felonies  merged  in 
treason.  This,  however,  was  in  truth  an  intermediate 
crime,  not  amounting  to  the  statutory  offence  on  the  one 
hand,  but  yet  properly  distinguishable  from  sedition  on 
the  other.  The  compassing,  which  was  now  no  longer 
treason,  was  the  act  of  an  individual  mind,  and  was  com- 
plete so  soon  as  the  intent  was  formed.  To  constitute 
the  crime  of  conspiracy  there  must  be  a  common  intent, 
a  combination  by  a  plurality  of  persons,  and  it  must, 


38  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    therefore,  be  considered  as  diiFerent,  both  from  the  com- 

cumming,  passlng  which,  under  the  late  act,  was  made  felony,  and 

andoaers!  from  Sedition  as  an  individual  act. 

Highconrt!  The  LoED  Justice-Clebk.— Do  you  maintain  that 
^°48!'    under  a  charge  of  sedition,  it  would  be  incompetent  to 

conapiracy  libel  a  Combining  for  seditious  purposes  ? 

&.Sedition.  Ceaufukd. — It  is  not  necessary  to  push  the  argument 
that  length.  The  charge  here  is  not  so  laid,  but  yet  it  is 
well  laid,  and  if  the  combination  is  proved  as  stated,  that 
is  more  than  mere  personal  sedition.  There  never  yet 
was  a  period  when  such  conspiracy  would  not  fer  *ehave 
been  a  crime  at  common  law. 

2.  The  Act  36th  Geo.  III.  made  no  difference.  Under 
it  the  common  law  was  specially  reserved ;  but  suppose 
the  common  law  to  have  been  excluded  under  that  act, 
and  suppose  that  the  act  had  not  been  made  perpetual, 
but  had  expired,  as  was  originally  contemplated,  within 
a  year,  it  could  not  then  be  contended  that  the  common 
law,  which  had  been  in  abeyance  during  that  period, 
would  not  have  revived.  Nothing  can  exclude  the  com- 
mon law  but  special  statute,  or  identity  between  the 
crime  charged  and  an  existing  treason.  If  the  act  charged 
be  no  longer  treason,  then,  even  admitting  the  doctrine 
of  merging,  that  would  not  help  the  argument  of  the 
panneH  inasmuch  as  it  must  be  a  living  treason,  not  a 
dead  one,  which  could  have  that  effect- 

3.  The  recent  statute  repeals  the  36th  Geo.  III.,  and, 
by  such  repeal,  restored  the  common  law,  as  to  all  corn- 
passings  not  made  substantive  treasons  under  the  statute 
of  Her  present  Majesty.  There  is,  therefore,  no  longer 
need  for  any  reservation  of  the  common  law,  which 
reaches  this  crime,  and  all  such  crimes  by  its  own  native 
vigour.  The  common  law  was  never  excluded,  except 
by  positive  words ;  Hume,  vol.  ii.  p.  37.  This  has  been 
acted  upon  in  many  cases  undet  Lord  Ellenborough's 
Act;  case  ^i  Alexander  Mackenzie,  High  Court,  Dec.  31. 
1843,  Broun,  vol.  i.,  495,  The  result  of  adopting,  the 
view  urged  on  the  other  side  would  be^  that  between  the 


AND  CIRCUIT  COURTS  0F  JUSTICIARY.  39 

act  of  Anne  and  the  act  of  Geo.  III.  such  conspiracy,  as    j^^^^ 
then  charged  against  the  pannel,  would  have  been  no  Cummmg, 
offence  at  all,   inasmuch  as  the  pannel  says  that  the.  and  others, 
statute  of  Anne  prevented  it  being  indicted  at  common  High  Court. 
law,  and  yet  he  admits  that  it  was  not  treason  under  the     i848. 
statute  of  Edward  III.     There  could  be  no  doubt  that  it  conspiracy 
might  have  been  so  tried  as  well  before  as  after  the  36th 
Geo.  III.     How  then  could  it  be  contendeid,  that  there 
was  anything  in  the  present  statute  to  prevent^the  Public 
Prosecutor  froin  libelling  the  offence  at  common  law, 
-which,  as  he  had  shewn,  had  been  always  in  force,  when 
the  crime  was  not  treason,  and  when  no  special  statute 
excluded  it  ? 

The  Lord  Justice-Clerk. — Is  it  not  a  strong"  thing 
to  say  that  you  are  entitled  to  disregard  all  the  privi- 
leges given  to  the  pannel  under  the  4th  and  9th  sections, 
as  to  the  time  within  which  the  information  must  be 
given — the  warrant  for  apprehension  issued — and  the 
party  brought  to  trial  ? 

Ceaufurd. — If  I  am  right  that  the  crime  of  conspi- 
racy is  not  identical  with  the  statutory  offence,  then  the 
pannel  can  suffer  no  injury.  More  especially,  as  we 
do  not  seek  to  enforce  against  him,  in  respect  of  this 
charge,  the  high  penalties  imposed  by  the  statute. 

Lord  Justice-Clerk. — Do  you  say  you  do  not  intend 
to  prove  the  compassing  charged,  as  a  contravention  of 
the  statute  by  means  of  conspiracy  ? 

Lord  Wood. — Under  the  3d  section,  the  compassings, 
imaginations,  &c.  which  are  declared  to  be  felony  under 
the  act,  are  said  to  be  completed  if  the  party  shall  ex- 
press, utter,  or  declare  the  same  by  publishing  any  print- 
ing or  writing,  or  by  open  advised  speaking,  or  by  any 
overt  act  or  deed ;  do  you  contend  that  th6  privileges 
given  in  the  4th  section,  as  contradistinguished  from  that 
given  in  the  9th,  is  confined  to  cases  where  the  party  is 
alleged  to  have  contravened  the  act  by  dpen  and  advised 
speaking  only?  Is  not  the  fair  construction  of  the  act, 
that  as  every  mode  of  committing  the  offence  is  declared 


40  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    to  be  a  felony,  and  to  be  punished  with  the  same  penalty, 

James  ''  ^  i        i  i  n 

Curaraing,.  that  the  protection  in  the  4th  section  should  equally  ex- 
and  others,  tend  to  all  cascs,  more  especially  as  this  is  the  plain  con- 
High  Court,  struction  of  the  privilege  given  in  the  9th  section. 

1848.'  The  Lord  Advocate. — ^There  are  two  answers  ;  the 
Conspiracy  fi^st,  that  if  I  do  not  prosecute  under  the  statute,  I  am 
&  Sedition,  jjq^  bound  to  give  the  privileges  conferred  by  the  statute  ; 
and,  secondly,  that  on  the  plain  construction  of  the  sta- 
tute, these  privileges  are  only  given  where  it  is  alleged 
that  the  statute  has  been  contravened  by  '  open  and  ad- 
vised speaking'  only.  And  there  was  good  reason  for 
this,  inasmuch  as  a  prisoner  might  not  be  enabled  to 
make  a  proper  defence,  in  respect  of  words  uttered  at  a 
public  meeting,  if  the  charge  had  been  allowed  to  remain 
over  his  head  until  the  circumstances  under  which  they 
were  uttered  were  forgot  by  parties  who  might  other- 
wise have  shewn  them  to  have  been  innocently  used. 

MoNCREiFF  replied — The  points  are  few,  but  impor- 
tant. Our  position  is,  that  the  charge  of  conspiring  to 
effect  an  alteration  of  the  laws  and  constitution  of  the 
realm,  by  reason  of  the  statute,  merges  in  the  felony,  just 
as  before  the  late  enactment  it  would  have  merged  in  trea- 
son, except  for  the  reservation  under  the  36th  Geo.  III. 
which,  whatever  the  object  might  otherwise  have  been, 
is  equivalent  to  a  statutory  declaration  that,  but  for  the 
reservation,  the  common  law  would  have  been  ousted. 
By  the  18th  section  of  the  Treaty  of  Union,  recited  in  the 
statute  of  Anne,  it  was  provided,  '  That  the  laws  which 
'  concern  public  right,  policy  and  civil  government,  maybe 
'  made  the  same  throughout  the  whole  united  kingdom.' 
And  by  the  subsequent  statute,  it  was  enacted, '  That  such 
'  crimes  and  offences  which  are  high  treason  or  mispri- 
'  sion  of  high  treason  within  England,  shall  be  construed, 
'  adjudged  and  taken  to  be  high  treason  and  misprision  of 
'  "high  treason  within  Scotland ;  and  that  from  henceforth, 
*  no  crimes  or  offences  shall  be  high  treason  or  mispri- 
'  sion  of  high  treason  within  Scotland,  but  those  that  are 
'  high  treason  or  misprision  of  high  treason  in  England.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  41 

The  statute  overruled  the  common  law,  in  so  far  as  it    No.  6. 

James 

was  inconsistent  therewith. — Lord  Holt,  in  Sir  John  Cumming, 
Friend's  case.  State  Trials,  vol.  x.  p.  599.  and  others. 

There  was  no  instance  of  a  party  having  been  indicted  High  Court. 
for  conspiracy  to  levy  war  as  a  separate  offence  before     ]848.' 
the  36th  Geo.  III. ;  it  must  therefore  have  been  con-  conspiracy 
sidered  prior  to  that  statute,  if  proved  by  overt  acts,  as 
treason,  or,  if  it  could  not  be  so  proved,  as  sedition  only. 
Notwithstanding  the  rebellions,  Hume  makes  no  men- 
tion of  any  common  law  charges  of  this  kind,  and  it  was 
feir  to  assume  that  nothing  of  the  kind  was  ever  con- 
sidered competent  at  that  time. 

The  doctrine  of  merger  goes  much  farther  than  seems 
to  have  been  supposed.  In  the  case  of  Mackinlay,  the 
point  was  not  decided  as  applicable  to  the  law  of  Scot- 
land, although  on  a  fair  import  of  the  opinions  delivered, 
it  must  be  assumed  that  the  doctrine  was  allowed  in 
cases  of  treason.  It  extends  to  cases,  however,  other 
than  those  of  treason,  the  principle  being  that  where 
particular  species  facti  are,  by  means  of  a  statute,  raised 
into  a  higher  offence,  it  is  incompetent  to  prove  them 
under  a  lower  charge.  The  Act  of  Victoria  was  a  British 
Statute :  it  had  used  English  terms  unknown  to  the  law 
of  Scotland,  and  we  must  go  to  English  law  for  an  in- 
terpretation of  their  meaning,  By  that  law  conspiracy 
would  be  misdemeanour  only,  and  even  conceding  the  ar- 
gument on  the  other  side  that  the  common  law  had  re- 
vived in  consequence  of  the  repeal  of  the  36th  Geo.  III., 
the  only  effect  would  be  that,  inasmuch  as  under  the 
present  act  it  was  declared  to  be  a  felony,  and  as  it  was  an 
undoubted  principle  of  English  law,  that  if  an  act 
amounted  to  felony,  it  could  not  be  charged  as  a  mis- 
demeanour, the  common  law  charges  were  incompetent 
here.  Mr  Justice  BuUer's  direction  to  the  Jury  in 
Isaac's  ease,  Russell  on  Crimes,  vol.  ii.  p.  550. 

The  question  was,  was  the  statute  exclusive  to  any 
extent — ^if  so,  it  was  exclusive  to  every  extent.  There 
were  provisions  in  favour  of  the  pannels,  and  the  Lord 


42  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     Advocate  could  not  neutralize  the  enactments  of  the 

Cummfng,  Legislature  in  their  favour,  under  pretence  that  he  did 

fnd  o?w  not  seek  to  have  a  high  penalty  imposed  upon  them, 

High  Court-  as   the   pannel   might   prefer  those   protections   which 

^848?'    might  enable  him  to  prove  his  innocence,  or  exempt 

Conspiracy  him  from!  trial  altogether,  rather  than  be  charged  with 

&  Sedition.  ^  subordinate  offence  infferring  a  minor  punishment, — 

in  respect  of  which,  those  privileges  were  not  accorded 

to  him. 

LoED  Justice-Gleek. — It  would  have  been  very  de- 
sirable to  have  had  more  time  to  deliberate,  before  giv- 
ing judgment  in  this  very  important  case ;  but,  as  the 
pannel  is  entitled  to  all  the  privileges  of  the  act  1701, 
under  the  9th  section  of  the  late  statute,  the  Court 
cannot  delay  giving  their  decision  upon  the  points  which 
have  been  urged  in  his  favour. 

I  feel  the  greatest  difficulty  in  supporting  the  relevancy 
of  the  charges  objected  to,  and  but  &r  the  great  differ- 
ence of  my  opinion  from  the  rest  of  the  Court,  I  should 
have  expressed  myself  more  decidedly  against  the  l-ele- 
vancy  of  the  two  charges  laid  at  common  law. 

I  think  the  Lord  Advocate  made  a  ^eat  mistake  as 
to  the  purport  of  the  argument  on  behalf  of  the  pannel, 
and  this  mistake  consistesd,  in  my  opinion,  in  not  observ- 
ing that  the  minor  of  all  the  charges  were  essentially 
the  same.  It  is  true,  that  at  first  the  argument  which 
has  now  been  submitted  to  the  Court,  was  confined  to 
the  charge  of  sedition  only,  but  on  my  suggestion,  it  has 
to-day  been  extended  to  both  the  charges  at  common 
law. 

I  wish  to  guard  myself  against  agreeing  in  the  doctrine 
which,  it  has  been  said,  has  been  involved  in  this  argu- 
ment, that  the  offences  here  charged  were  not  cogniz- 
able by  the  common  law  before  the  36th  of  Geo.  III., 
I  have  no  doubt  before  the  passing  of  that  act  they 
were  illegal.  That  statute  made  them  treason,  but  in 
a  crinlinal  charge,  the  nature  of  the  facts  alleged  against 
the  prisoner  is  alone  important.     No  doubt  compass- 


AND  CIECUIT  COURTS  OF  JDSTICIARY.  43 

ing  to  levy  war  against  the  Queen  was  made  treason     No.  e. 
by  36th  Geo.  III.,  as  made  perpetual  in  the  subsequent  Cumming, 
year ;  but  this  shews  that,  at  common  law,  the  rule  was  and  others. 
as  I  have  stated  it,  namely,  that  intention  must  be  High  Court. 
shewn  by  overt  acts  in  all  criminal  offences,  and  that    ^°^'il' 
according  to  the  criminality  of  the  overt  acts  proved,  conspiracy 
the  law  would  infer  a  criminal   intention.      The   act  ^  Sedition. 
of  Geo.  III.  contains  a  clause  which  expressly  enables 
the  prosecutor  to  try  at  common  law  for  the  overt  acts, 
which  were  always  illegal,  as  well  as  for  the  intention 
then  first  made  a  crime  under  the  statute.    This,  is  easily 
understood.   It  was  natural,  under  the  circumstances,  to 
find  such  a  reservation,  inasmuch  as  on  the  one  hand  it 
would  have  been  extremely  difficult  to  have  proved  in- 
tention without  overt  acts,  so,  on  the  other,  it  might  ap- 
pear on  the  evidence,  that  the  only  intention  the  law 
could  ascribe  to  the  prisoner  was  a  treasonable  one, 
whereby  an  indictment  for  a  less  offence  might  have 
been  rendered  abortive.     It  is  however  conceded,  that 
no  such  reservation  exists  in  the  late  statute,  nor  could 
it  be  expected,  for  as  the  intentions  dealt  with  by  the 
statute  are  now  no  longer  substantive  treasons,  the  rea- 
son for  such  reservation  no  longer  exists. 

The  late  statute  is  entitled,  '  an  act  for  the  better 
'  security  of  the  Crown  and  Government  of  the  United 
'  Kingdom,'  and  I  think  that  the  safe  rule  is  to  con^ 
sider  it  as  the  whole  code  of  law,  applicable  to  the 
offences  of  which  it  treats.  The  general  declaration  of 
the  statute  of  Union,  the  nature  of  the  Union  itself,  and 
the  whole  scope  and  object  of  legislation  since  that  period, 
shew  that  such  an  act,  defining  the  criminality  of  politi- 
cal offences,  containing  provisions  as  to  the  mode  of  pro- 
secution, must  be  taken  as  a  legislative  declaration  of 
what  shall  be  the  full  and  only  remedy  at  both  ends  of 
the  island.  This  statute,  after  a  recital  of  previous 
statutes,  and  after  repealing  the  same,  in  so  far  as  they 
relate  to  compassing,  proceeds,  in  the  third  section,  to 
declare  that  such  compassing  shall  be  felony.     I  can- 


44  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    not  separate  these  two  provisions,  more    especially  as 

Cummb^g,  this  section  is  identical,  with  the  single  difference  of  add- 

fndOftCTs!  ing  the  words,'  '  on  her  or  royal  name,'  with  the  words 

High  Court,  employed  in  the  36th  of  Geo.  III.     The  statute  then 

^848^"    prescribes   how   the    offences    contemplated    shall    be 

Conspiracy  punishcd,  aM  restricts  the  powers  of  the  prosecutor  as 

&  Sedition.  iQ  ^]je  tjme  within  which  he  is  to  prefer  his  instance,  and 

thereafter  restricts  the  competency  of  trial  within  the 

period  allowed  to  persons  after  intimation  has  been  given 

under  the  act  1701. 

In  the  face  of  such  provisions,  tending  so  materially 
to  the  benefit  of  the  pannel,  I  cannot  bring  myself  to 
believe,  that  when  the  legislature  enacted  this  statute,  it 
was  ever  contemplated  that  it  was  competent  to  the 
Public  Prosecutor  to  evade  all  these  advantages,  by  pro- 
ceeding as  for  a  different  offence  at  common  law. 

If  I  could,  looking  at  the  whole  scope  of  this  indict- 
ment, find  the  charge  of  conspiracy  or  sedition  different 
in  substance  or  matter  of  charge  from  the  alleged 
statutory  offence,  my  difficulties  would  not  arise  ;  but 
surely  a  charge  of  compassing  to  levy  war  against  the 
Queen  would  be  supported  by  proof  of  a  conspiracy  so 
to  do.  There  never  was  such  a  conspiracy,  however 
abortive,  without  a  compassing.  The  same  acts  which 
would  shew  conspiracy,  if  they  proved  anything,  would 
also  establish  the  compassing.  In  the  first  charge  it  is 
stated  that  the  pannel  was  '  convened  as  member,'  &c. 
of  the  alleged  illegal  body,  associated  for  the  illegal 
purposes  therein  set  forth.  Now,  what  does  that  charge 
import  ?  It  has  not  been  disputed,  that,  with  the  ex- 
ception, not  the  variance,  that  a  joining  of  the  national 
guard  is  not  charged  in  the  minor  under  the  common 
law  charge,  the  charges  are  otherwise  identical.  It  is 
manifest  that  one  minor  would  have  done  for  both.  I 
have  the  greatest  diflBculty,  then,  in  holding  that  any 
different  offence  can  be  ascribed  in  the  major.  If  it  was 
so,  I  must  tell  the  Jury,  when  I  come  to  sum  up,  that 
although  they  shall  say  that  the  parties  are  innocent  of 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  45 

the  facts  charged  against  them  under  the  statute,  they    No.  e. 
may  yet  be  guilty  of  the  same  facts  under  the  charge  Cumming, 
at  common  law.     To  my  mind  such  a  state  of  things  and  other", 
is  impossible.      It  is  plainly  no  difference  that  others  High  Court. 
were  with  him  (the  pannel),  inasmuch  as  he  is  alleged    ^j°8''48^' 
to  have  acted  in  concert  with  others  in  the  contravention  conspiracy 
of  the  statute ;  and  perhaps  the  worst  acts  set  forth  *  Sedition. 
against  him,  in  respect  thereof,  are  his  approval  and 
adoption  of  the  illegal  conduct  of  others  with  whom  he 
was  associated. 

A  point  has  been  raised  during  the  discussion,  on 
which  I  am  anxious  to  have  the  assistance  of  the  Court, 
namely,  that  the  conspiracy  here  set  forth  is  not  sedition. 
To  that  doctrine  1  entirely  demur.  I  think  it  sedition 
of  the  worst  kind,  but  still  sedition.  I  have  never  for 
one  moment  thought,  since  the  passing  of  Sir  William 
Rae's  act,  that  transportation  is  still  competent  for  acts 
like  those  charged  in  the  present  indictment.  Here  the 
Public  Prosecutor  ought  to  have  charged  '  sedition, 
'especially  when  committed  by  compassing,'  &c.  In 
1793,  under  the  general  charge  of  sedition,  the  pannels 
had  sentence,  after  proof,  for  seditious  conspiring  ;  but 
should  the  jury  return  a  verdict  of  not  guilty  of  sedition, 
but  guilty  of  conspiracy,  if  we  pronounce  our  interlocu- 
tor sustaining  the  relevancy  of  both  charges,  we  must 
■  hold  this  to  be  a  good  and  consistent  verdict.  I  should 
like,  for  my  assistance  in  directing  the  jury,  to  hear  your 
Lordships'  sentiments  on  this  point. 

It  is  for  these  reasons  that  I  am  for  sustaining  the 
objections  which  have  been  made  to  the  relevancy  of  the 
present  indictment.  In  so  doing,  I  wish  it  to  be  under- 
stood, that  I  by  no  means  go  on  any  general  notion  that 
the  intervention  of  a  statute  abrogates  the  common  law 
in  every  case.  I  go  upon  the  peculiarities  of  this  statute 
itself,  the  object  for  which  it  was  framed,  and  the  cir- 
cumstances under  which  it  passed ;  and  giving  due  re- 
gard to  these,  I  am  of  opinion  that  the  Legislature  has 
thereby  definitively  declared,  that  wherever  the   acts 


46  CASES  BEFORE  THE  HIGH  COURT 

N^^6^.  charged  against  a  pannel,  in  fair  construction  of  law, 
Gumming,  amount  to  a  contravention  of  the  statute,  the  only  com- 
and  oth^.  petent  proceedings  are  those  prescribed  by  the  statute, 
High  Court,  with  all  the  privileges  it  gives  to  the  parties  accused. 

m8^"  Lord  Mackenzie. — There  are  two  charges  objected 
Conspiracy  to,  couspiracy  aud  sedition,  both  charges  at  common 
&  Sedition,  i^^     n  jg  jjQ^.  gg^jjj  ^jjg^t  tjjgge  a,re  not  crimes  at  common 

law  themselves.  But  it  is  said  that  they  are  excluded  by 
the  statute  of  Victoria,  as  containing  matter  that  is  in 
the  statutory  charge.  Now,  I  think  it  does  contain  such 
matter.  But  does  that  warrant  the  exclusion  of  the  com- 
mon law  charges  ?  It  is  said  to  do  so.  Why  ?  Because, 
it  comes  in  place  of  36th  Geo.  III.,  which  would  have 
excluded  it.     Now,  to  this  I  see  two  answers : — 

First,  the  act  36th  of  Geo.  III.  did  not  exclude  the 
common  law  :  it  had  a  clause  expressly  reserving  it. 

Secondly,  if  the  act  of  George  Third  did  exclude  the 
common  law,  yet  the  mention  of  it  in  the  act  of  Victoria,  as 
coming  in  place  of  that  of  George  Third,  did  not  mean 
that  it  was  to  keep  up  this  effect  of  that  statute.  It  re- 
pealed, in  the  proper  enacting  clause,  the  act  of  George  the 
Third,  and  without  any  qualification.  It  therefore  took 
away  the  treasons  of  the  act  of  George  Third,  and  substi- 
tuted a  felony.  Now,  supposing  that  the  treasons  of  the 
statute  of  George  the  Third  excluded  the  common  law, 
why  should  this  exclusion  remain,  when  they  were  taken ' 
away,  and  a  statutory  felony  substituted,  felony  having  no 
such  quality  of  exclusion  as  treason  has  ?  The  one  is 
taken  away  with  its  qualities;  the  other  substituted 
with  its  qualities.  If  the  accessory  qualities  of  treason 
had  been  continued,  it  would  have  greatly  defeated  the 
purposes  of  the  act,  one  of  which  was  to  facilitate  the 
trial  of  these  things.  I  therefore  set  aside  that  expres- 
sion. Secondly,  but  it  is  further  said,  that  the  statute  of 
Victoria  in  itself  has  provisions  inferring  the  exclusion  of 
the  common  law.  I  am  not  satisfied  with  that  argument. 
The  act  Victoria  is  an  act  which  imposes  severe  pains 
on  certain  acts,  which,  at  common  law,  were,  as  sedition. 


AND  CIRCUIT  COURTS  OF  JUSTrc<ARY.  47 

punishable  only  by  two  years  imprisonment  at  most.     No.  6. 

.  11  Tit  •         n         James 

This  statute  makes  them  liable  to  transportation  for  Gumming, 
life.  It  also  brings  in  accessories  after  the  fact,  not  liable  aadothera. 
at  common  law,  and  takes  away  the  right  of  bail  from  HighComrt. 
the  accused.  On  the  other  hand,  it  gives  certain  privi-  ^gla^' 
leges  to  those  prosecuted  under  it.  The  chief  of  these,  conspiracy 
which  relates  to  the  charge  of  advised  speaking,  is  of  value,  ^  Sedition. 
and  there  are  some  other  privileges  of  less  moment.  But 
I  cannot  see  why  these  may  not  be  given  to  persons  pro- 
secuted under  the  statute,  without  inferring  that  the 
common  Jaw  is  excluded  in  prosecutions  of  all  the  acts 
of  crime  stated  in  the  statute.  I  think  the  statute  free 
from  any  absurdity,  in  the  view  that  the  common  law  was 
open,  as  before,  with  its  lighter  pains,  and  less  severe 
procedure ;  but  that  if  the  statute  is  insisted  in,  the  privi- 
leges thereby  given  must  be  granted.  I  cannot  therefore 
supply  the  place  of  a  clause  of  exclusion  in  the  statute. 
And,  on  the  whole,  I  feel  bound  to  repel  the  objections. 
Lord  Moncreiff. — I  could  have  wished  for  more 
time.  This  indictment  contains  three  charges — one  is 
for  contravention  of  the  statute,  founded  on  the  third 
section.;  That  is  a  high  and  penal  statute,  and  there  is 
no  objection  to  the  charge  founded  thereon.  But  the 
indictment  goes  on  to  state  second  and  third  charges. 
The  second  charge  I  think  different  in  some  respects 
from  the  first.  The  question  we  have  to  decide  is, 
whether  this  second  charge  is  relevant  as  the  law  stands. 
No  one  doubts,  that,  apart  from  the  statute,  it  would 
have  been  good.  It  is  admitted  that  the  species  facti  set 
forth  constituted  a  crime  before  the  Union.  By  that 
act,  no  doubt,  the  law  of  Scotland,  so  far  as  respects 
treasonable  offences,  was  overruled.  The  36th  Geo.  III. 
makes  acts  similar  to  those  now  charged  a  substantive 
treason,  and  contains  a  special  clause,  reserving  the  com- 
petency of  a  common  law  charge,  thereby  preventing  any 
merger.  That  statute  is  now  repealed,"  and  with  it  the 
reservation  also.  But  it  is  important,  in  considering  the 
questions  which  have  been  raised,  to  remember,  that 


48  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     when  they  were  treason,  the  common  law  was  preserved, 

James  ■'  '  -  j  •   • 

Gumming,  In  the  rccent  statute  there  are  substituted  provisions. 

and  Others.  But  there  WRs  HO  necessitj  for  any  reservation  of  the 

High  Court,  common  law,  inasmuch  as  there  was  no  treason  which 
1848. "   was  to  have  the  effects  of  creating  a  merger.     I  never 

Conspiracy  heard  that  because  a  statute  applies,  the  common  law  is 
thereby  necessarily  ousted.  The  act  of  Victoria  is  a  highly 
penal  one.  The  common  law  charge  does  not  lead  to  the 
same  inference  as  the  statutory  one,  and  I  think  the  second 
charge  different  from  the  first.  Conspiring  is  not  neces- 
sarily the  same  thing  with  compassing  and  imagining. 
I  think  the  law  contemplates  a  special  case,  and,  inas- 
much as  this  libel  contains  no  statement  of  open  and  ad- 
vised speaking,  I  think  the  protections  therein  given 
cannot  legally  be  claimed  by  the  pannels  as  of  right. 

Lord  Medwyn. — The  indictment  contains  three 
charges ;  the  objection  is  to  the  second  and  third.  I 
agree  with  Lord  Moncreiff  that  the  charges  are  somewhat 
difierent.  There  may  be  compassing  without  conspiracy. 
There  may  also  be  conspiracy  without  sedition,  though 
in  this  case  I  think  it  sedition  of  an  aggravated  kind ; 
the  question  is.  Can  the  common  law  be  excluded  ?  I 
do  not  think  the  unplication  from  the  statute  is  sufficiently 
strong  to  have  that  effect.  It  is,  no  doubt,  now  a  common 
law  offence.  By  36th  George  Third,  the  common  law 
right  is  preserved.  By  the  present  act,  the  repeal  of 
36th  George  Third  was  effected,  as  there  was  no  longer 
any  treason  into  which  the  sedition  could  merge.  It  has 
been  said  that  the  statute  is  the  whole  code  of  law  ap- 
plicable to  the  offence.  The  clause  by  advised  speaking, 
although  somewhat  difficult  to  separate  from  the  rest  of 
the  statute,  still  does  not  appear  to  me  sufficient  to  ex- 
clude the  common  law  on  a  charge  like  the  present,  when 
that  is  not  charged.  It  may  be  proper,  where  the  sta- 
tute is  founded  on,  to  give  .the  protection  it  aflFords,  but 
that,  to  my  mind,  is  not  enough  to  exclude  a  common 
law  charge  like  the  present. 

Lord  Cockburn.— There  are  two  questions  for  our 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  49 

decision, — the  one  is,  whether  treason  absorbs  all  subor-    No.  e. 

James 

dinate  charges ;  conceding  that  to  be  so,  it  has  no  appli-  Cumming, 
cation  to  the  present  case,  inasmuch  as  this  is  not  said  and  other" . 
to  be  treason.  The  other  is  on  36th  George  Third,  as  High  court. 
construed  in  pari  materia  with  the  recent  statute.  There  ^{'sis.' 
is  no  question  that  a  conspiracy  like  this  is  a  crime.  I  conspiracy 
cannot  doubt  this.  The  point  for  determination  is,  has  *  ^®'i''"'"- 
the  common  law  been  taken  away  by  the  late  statute,  so 
that  the  only  competent  punishment  must  be  under  the 
statute,  and  under  the  privileges  given  to  the  pannel 
therein,  so  that  he  has  a  right  to  insist  on  being  tried 
under  the  statute,  and  within  the  statutory  period.  Now, 
there  is  here  no  express  abrogation  of  the  common  law. 
It  is  said  to  be  abolished  by  implication.  It  must,  how- 
ever, be  an  unavoidable  and  necessary  implication,  to 
have  such  an  effect,  and  I  cannot  see  whence  this  arises. 
Nothing  is  more  common  than  alternatively  charging  a 
9ontravention  of  a  statute  along  with  a  common  law 
charge,  and  if  one  minor  will  serve  several  majors,  the 
prosecutor  is  entitled  so  to  frame  his  indictment.  Even 
if  the  charges  were  identical,  I  should  not  think  exclu^ 
sion  of  the  common  law  necessarily  followed ;  but,  inas- 
much as  these  facts  are  not  entirely  the  same,  and  the 
charges  are  not  the  same,  I  do  not  think  the  latter 
made  a  crime  under  the  statute  {reads  statute).  There 
must,  under  the  statute,  be  a  levying  of  war,  which  is 
not  said  here.  There  is  not,  therefore,  any  necessary 
implication  to  exclude  the  common  law,  and  as  I  can 
guess  the  intention  from  words  only,  I  do  not  think  they 
have  so  expressed  themselves  as  to  justify  us  in  reject- 
ing this  charge.  In  answer  to  the  question  of  privilege, 
it  is  sufficient  to  say  that  he  will  be  exempted  from 
the  pains  of  the  statute  if  found  guilty  of  the  common 
law  charge  only. 

Lord  Wood. — I  feel  great  difficulty  in  giving  an 
opinion.  There  are  three  charges.  The  one  statutory, 
one  conspiracy,  which  I  think  the  same  as  sedition,  and 
a  third  sedition.     I  think  there  may  be  many  charges 


50  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  of  thoise  acts  set  forth  so  drawn  as  not  to  infer  a  con- 
cummlng,  travention  of  the  statute.  I  think  the  charges  in  sub- 
fndo?hTs!  stance  is  the  same,  notwithstanding  the  variation  in 
High  Court.  Haajor.  I  have  no  doubt,  therefore,  that  it  is  a  rele- 
^°848^'  vant  case  under  the  statute.  If  I  am  asked  to  hold 
Conspiracy"  *^^*  *^^  chargcs  couspiracy  and  sedition  are  to  be  sus- 
&  Sedition,  tained  because  they  are  different,  I  should  say  the  ob- 
jection would  be  good,  because  I  conceive  them  to  be 
substantially  one  with  the  statutory  offence.  But  the 
question  is,  can  you  have  both?  Up  to  36th  Geo.  III. 
these  acts  were  indictable  by  common  law,  then  they 
were  created  into  treason,  and  the  less  offence  merged, 
but  the  common  law  was  preserved  even  by  that  statute. 
These  could  not  otherwise  have  been  prosecuted  at 
common  law,  on  account  of  the  merger.  But  the  sta- 
tute preserved  the  common  law.  Then  came  the  present 
statute.  If  the  36th  Geo.  III.  had  merely  expired  the 
common  law  would  have  revived ;  and  the  same  conse- 
quence follows  from  its  repeat  They  are  now  no  longer 
treason,  but  felony  under  the  recent  statute,  and,  but  for 
other  and  special  considerations,  I  would  have  had  no 
difficulty  in  saying  they  might  still  be  prosecuted  as  at 
common  law,  when  the  reservation  was  no  longer  neces- 
sary, in  consequence  of  the  repeal  of  the  statute.  But 
the  difficulty  is  in  respect  of  the  special  provision  in  the 
recent  enactment,  that  it  is  to  enact  other  penalties  in 
lieu  of  treason,  and  which  at  first  sight  seems  to  constitute 
it  the  only  code  of  law  on  the  subject.  But  I  incline 
to  hold  that  the  only  meaning  of  this  is  to  say  they  are 
not  to  be  treason  but  felony.  I  am  not  sure  that  this  is 
enough,  by  way  of  inference,  to  abrogate  the  common 
law ;  although  we  are  pressed  with  the  fourth  section, 
containing  so  many  and  valuable  protections  for  the 
benefit  of  the  pannel. 

But  I  think  with  Lord  Mackenzie  that  the  protection 
is  given  only  to  the  case  of  prosecution  for  open  and 
advised  speaking,  now  made  a  felony  under  the  statute. 
But  if  you  proceed  under  common  law  offence,  I  do  not 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  51 

think  that  the  inference  is  sufficient  to  exclude  us  from    No.  6. 
sustaining  the  relevancy  in  that  form,  although,  no  doubt,  cumming, 
the  effect  is  to  deprive  the  accused  of  those  protections,  fna  oaeS! 
On  these  grounds  I  concur  with  the  majority  of  the  Hieh  Court. 
Court.  Xil- 

Conspiracy 
&  Sedition. 


Present, 

Nov,  13. 
The  Lord  Justice-Clerk,  '**'• 

Lords  MoNCRteipp  and  Medwyn. 

During  the  trial  of  the  pannels  Grant,  Ranken,  and 
Hamilton,  Peter  Anderson,  one  of  the  witnesses,  for  the 
Crown,  deponed, — That,  at  a  meeting  of  the  Edinburgh 
Chartist  Association,  a  letter  was  received  from  a  person 
named  M'Kay,  applying  for  aid  to  publish  a  pamphlet, 
a  draft  of  which  was  enclosed.  On  a  printed  pamphlet 
being  shewn  to  him,  for  the  purpose  of  identification,  it 
was  objected  on  behalf  of  the  pannels,  that  before  this 
could  be  done,  the  Crown  must  prove  that  the  prisoners 
were  present  on  the  occasion  referred  to. 

The  Court  held,  that  as  the  object  was  to  prove  pub- 
lication of  a  pamphlet,  under  the  sanction  of  an  associa- 
tion, of  which  the  prisoners  had  been  shewn  to  be  mem- 
bers, the  evidence  could  not  be  objected  to  at  that  stage 
of  the  proceedings.  It  would  be  open  to  the  prisoners 
to  shew  that  it  had  no  application  as  against  them,  by 
proving  that  they  were  not  concerned  in  it. 

John  Bikings,  another  witness,  was  asked  whether  he 
had  heard  Hamilton  advocate  the  use  of  arms  at  the 
meeting  held  on  the  Calton  Hill,  whereupon 

Logan,  for  the  pannel,  objected  that  this  evidence  was 
incompetent,  the  special  occasion  when  the  words  were 
said  to  have  been  uttered  not  having  been  libelled. 
There  was  no  analogy  between  the  latitude  allowed  to  a 


52  Cases  before  the  high  court 

1^0.6.     prisoner  in  conducting  his  defence,  and  the  strictness 
and  others,  required  to  be  observed  by  the  Crown.     To  support  an 
High  Court,  indictment,  the  prosecutor  was  bound  to  prove  particular 
,  ^ms'.^'  facts,  and  that  they  took  place  on  the  occasions  specified. 
ConsEiracy  The  objcct  of  scrviug  the  indictment  before-hand,  and 
&  Sedition,  ^j^g  rcquisitious  of  criminal  pleading,  were  all  intended 
to  guard  the  pannel  against  surprise  on  the  trial.     Here 
the  general  statement  was,  that  the  pannels  had  unlaw- 
fully conspired,  and  in  support  of  that  allegation,  parti- 
cular species  facti  were  set  forth.     The  prosecutor,  not 
content  with  proving  what  he  had  alleged,  sought  to  esta- 
blish words  used  on  an  occasion  of  which  he  had  given  no 
warning. 

Craufubd  said,  it  was  proposed  to  lead  this  evidence, 
not  with  reference  to  a  particular  charge  of  sedition  by 
spoken  words,  but  to  support  the  general  charge  of  con- 
spiracy. It  was  competent  to  prove  that  the  prisoner 
used  any  words  within  the  period  libelled,  indicating  his 
knowledge  of  the  nature  of  the  institution,  its  intention, 
and  objects.  It  would  be  relevant  to  prove  that  these 
words  were  addressed  to  an  individual,  and  it  can  be  no 
less  relevant  to  prove  them  when  uttered  at  a  public 
meeting.  He  was  also  entitled,  he  maintained,  to  anti- 
cipate a  remark  which  might  be  made  in  defence,  that 
the  prisoner  did.  not  know  the  objects  for  which  the  in- 
stitution was  formed. 

MoNCEEiFF  answered,  there  were  certain  public  meet- 
ings specifically  libelled,  at  which  seditious  words  were 
alleged  to  have  been  uttered.  The  pannels  were  en- 
titled to  hold  that  the  occasions  and  words  set  forth  in 
the  indictment,  were  those  alone  on  which  the  prosecutor 
intended  to  rely.  It  might  lead  to  the  greatest  injustice 
if  it  was  allowed  that  other  meetings  and  other  words 
than  those  libelled  might  be  proved.  It  was  incompe- 
tent to  prove  intention  of  conspiracy,  without  giving 
notice  of  the  occasion  in  respect  of  which  the  proof  was 
offered. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  53 

No.fi. 
John  Grant 

The  question  was  not  farther  pressed.  and  others, 

The  Court,  however,  stated  that  it  must  not  be  con-  High  Court. 

...  ,.         ,         1  11  ,      .  .  Nov.  13, 

sidered  as  a  ruhng  by  them,  that  language  intimating     i848, 
an  intention  of  conspiracy  could  not  be  proved,  though  Conspiracy 
the  specific  occasion  on  which  it  was  used  was  not  stated 
in  the  libel. 

James  Brownlee,  a  sergeant  of  police,  having  deponed 
to  having  been  present  at  the  meeting  at  Bruntsfield 
Links,  at  which  Ranken  spoke  and  moved  the  first  re- 
solution, was  asked  whether  he  had  advised  the  people 
to  get  arms,  in  order  to  procure  the  charter ;  whereupon, 

MoNCREiFF  objected,  that  when  an  indictment  for  se- 
dition libelled  particular  expressions  in  proof  of  the 
crime,  it  was  incompetent  to  prove  any  general  state- 
ment not  included  in  the  libel. 

Craufurd  argued  that  the  expressions  in  the  libel 
formed  a  distinct  charge.  It  was  not  sought  to  adduce 
this  evidence  to  prove  any  other  act  of  sedition  than 
those  set  forth.  It  was,  however,  a  proper  and  compe- 
tent proceeding  that  evidence  of  other  expressions  in 
the  same  speech  should  be  laid  before  the  jury,  in  sup- 
port of  the  charge  of  sedition,  or  deduced  from  the  par- 
ticular expressions  mentioned  in  the  indictment. 

The  Coiirt  ruled  that  the  evidence  was  admissable. 

It  was  proposed  to  ask  Andrew  Oliver  Smith,  clerk 
in  the  County  Police  Office,  to  read  a  printed  placard. 
No.  3  of  Process,  purporting  to  be  headed  '  National 
'  Guard,'  and  intimating  a  meeting  of  the  National 
Guard  on  28th  June  1848  ;  whereupon  it  was  objected 
by  the  counsel  for  the  pannels,  that  this  was  not  evidence 
against  any  of  the  prisoners,  until  it  had  been  previously 
shewn  that  they  were  in  some  way  connected  with  the 
National  Guard. 

The  Lord  Justice-Cleek. — You  may  be  able  to  dis- 
connect yourselves  from  the  National  Guard,  but,  inas- 
much as  it  is  proved  that  the  subject  of  a  National 
Guard  was  discussed  at  the  meeting  of  the  Chartist  As- 
sociation,, on  the  25th  and  28th  of  April,  at  both  of 


54  CASES  BEFORE  THE  HIGH  COURT 

1*0.6.     which  Ranken  and  Hamilton  were  present,  and  inas- 

and  others,  much  as  it  is  clearly  shewn  that  they  were  connected 

High  Court,  with  the  Association  on  the  28th  of  June,  it  is  clearly 

^il'ilf'   competent  that  the  placard  should  be  read  as  evidence. 

Conspiracy  agalust  them. 

&  Sedition.  Thereafter  it  was  proposed  to  read  a  letter,  bearing  to. 
be  dated,  '  Glasgow,  April'  30.  1845,'  and  subscribed 
'  James  Smith,  Sub.  Sec' 

Logan  objected  to  the  document  being  read.  It 
could  only  be  produced  with  a  view  to  make  out  con- 
spiracy, but,  inasmuch  as  the  conspiracy  libelled  was  not 
alleged  to  extend  farther  back  than  March  1S48,  it  was 
clearly  incompetent  to  adduce  evidence  of  what  took 
place  three  years  before  in  support  of  the  charge. 
The  Court  held  that  the  letter  could  not  be  read. 
It  wa?  proposed  to  read  a  letter,  No.  6,  bearing  to  be 
dated  '  Edinburgh,  2  Causewayside,  Thursday  morning, 
'  11th  May  1848,'  and  to  be  subscribed  'John  Ferguson, 
'  Archibald  Walker.'  It  appeared  that  the  letter  was 
put  into  the  Post  Office  directed  to  Ranken,  and  that  it 
contained  a  request  that  it  should  be  communicated  to 
Gumming  afterwards,  and  that  it  was  found  in  the  hands 
of  Gumming  open. 

MoNCRiEFF,  for  Ranken,  objected,  that  this  letter  could 
not  be  read,  inasmuch  as  it  was  not  shown  that  it  had 
ever  come  into  Ranken's  hands. 

The  LoED  Jtjstice-Clerk — If  it  did  go  to  Gumming 
by  mistake,  and  never  reached  the  party  to  whom  it  was 
directed,  it  would  be  competent  for  you  to  prove  the  fact ; 
but  as  this  letter  was  put  into  the  Post-office  directed  to 
Ranken,  the  Gourt  cannot  presume  that  there  was  a  mis- 
carriage iu  the  Post  Office,  more  especially  as  the  letter 
itself  bears  that  it  was  to  be  communicated  to  Gumming, 
in  whose  hands  it  was  found. 

MoNCRiEFF — It  was  uccessary  to  prove  Ranken's 
knowledge  of  the  letter.  The  writer  was  not  accused  as 
a  co-conspirator,  and,  therefore,  without  farther  evidence, 
it  was  impossible  to  allow  it  to  be  read  as  evidence  of  a 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  55 

conspiracy  in  which  Ranken  was  said  to  be  involved,  al- j^j^^"'^^:^^^^ 
though  the  writer  was  not.  Besides  which,  the  letter  and  others. 
was  clearly  private :  and  it  could  not  be  evidence  that  a  High  Court. 

11.  .1  M  •  1  1  Nov.  13. 

party  had  written  a  private  letter,  until  it  was  shewn  that  i848. 
the  prisoner  had  seen  it.  Put  the  case  that  the  letter  Conspiracy 
had  contained  a  disclosure  of  some  nefarious  design,  al- 
together unconnected  with  the  alleged  Chartist  conspi- 
racy, that  clearly  would  not  be  evidence.  Erskine,  in 
the  case  of  Hardy,  1794,  State  Trials,  vol.  xxiv.  p.  448, 
properly  drew  the  distinction  between  what  an  agent 
does,  and  what  he  says  has  been  done.  This  letter  only 
professed  to  be  a  narrative  of  what  others  had  done,  and 
the  writer  was  not  shown  to  have  been  a  co-conspirator. 
Had  he  been  so,  according  to  the  principle  stated  by 
Erskine  in  the  case  referred  to,  the  letter  would  not 
have  been  evidence  against  the  party  to  whom  it  was 
addressed. 

The  Lord  Advocate  replied,  that  although  it  had  not 
been  shown  that  Ferguson,  the  writer  of  the  letter,  was 
in  any  way  conaected  with  the  conspiracy,  it  had  been 
shown  that  Walker,  who  also  subscribed  it,  and  Gum- 
ming, to  whom  it  was  communicated,  were  both  members 
of  the  Chartist  Committee,  and  it  could  not  be  supposed 
that  it  would  reach  Cumming's  hands,  except  through 
the  medium  of  the  prisoner  Ranken.  This  circumstance 
caused  the  case  to  differ  essentially  from  that  of  Hardy, 
where  the  writer  only  was  said  to  have  been  a  conspira- 
tor, and  not  the  receiver.  He  also  quoted  Lord  Mon- 
creiff 's  opinion  in  the  case  of  the  Cotton  Spinners. 

LoED  Medwyn. — The  document  in  Hardy's  case  con- 
tained only  the  relation  that  certain  songs  were  sung, 
written  by  one  person  to  another,  who  was  unconcerned 
with  the  crime  charged.  It  was  not  a  letter  written 
from  one  conspirator  to  another.  Here  Walker  is 
proved  to  have  been  a  conspirator  as  much  as  Ranken. 
The  important  point  is,  that  at  the  end  of  the  letter 
there  is  a  statement  that  the  letter  is  to  be  handed  to 
Cumming,  and  the  letter  is  found  in  Cumming's  hands 


56  CASES  BEFORE  THE  HIGH  COURT 

johnGrant  '^P^""  ^^^  presumption  is,  that  it  came  to  the  person 
and  Others,  entitled  to  opcu  it,  was  opened,  and  shown  to  Gumming. 
HighCourf  Ey'en  if  Ranken  had  never  seen  the  letter,  I  think  it  is 

Nov.  13.  . 

1H48.     good  evidence.     I  consider  this  case  greatly  ditterent 
Conspiracy  from  that  of  Hardj. 

Lord  Moncreiff. — My  impression  as  to  the  case  of 
Hardy  was  different.  I  suspect  yet  it  was  the  case  of  a 
letter  from  one  conspirator  to  "another,  and  that  it  was 
admitted.  I  see  no  objection  to  this  letter.  It  is  signed 
by  Walker,  and  may  be  considered  his  as  much  as  Fer- 
guson's It  is  addressed  to  Ranken,  and  to  be  communi- 
cated to  another  alleged  conspirator.  It  is  said  for  the 
pannel  that  he  did  not  see  the  letter.  This  may  be  in 
the  first  instance  supposed.  But,  suppose  he  did  not 
see  it  at  first,  he  might  afterwards  see  it,  therefore  it  is 
not  to  be  assumed  that  he  never  saw  it.  It  is  said  that 
it  contains  a  narrative  only.  But  it  is  put  in  as  proving 
a  conspiracy,  and  a  narrative  of  things  said  to  have  been 
done  may  be  a  most  important  item  of  evidence. 

Lord  Justice-Clerk. — It  is  always  satisfactory  when, 
in  giving  a  decision,  we  find  the  opinions  of  other  Judges 
coinciding  with  our  own.  But  when  there  has  been 
great  difference  in  the  decisions  delivered,  we  are  better 
situated  to  decide  after  the  lapse  of  fifty  years,  than 
when  the  point  rose  suddenly,  and  two  of  the  most  emi- 
nent of  the  English  Judges  differed  from  the  majority  of 
the  Court.  I  have  often  considered  the  case  of  Hardy,  and 
I  find  it  often  alluded  to  by  others.  Giving  due  weight 
to  the  opinion  of  the  majority,  I  think  it  went  on  a  mis- 
apprehension. In  conspiracy,  the  purpose  and  intention 
is  what  is  to  be  proved.  The  acts  of  those  concerned, 
though  unknown  to  the  prisoners,  may  be  good  evidence 
of  the  design.  Thus,  in  the  case  of  Brandreth,  it  was 
permitted  to  prove  acts  done  in  one  part  of  England,  to 
establish  the  design  entertained  in  common  with  those 
in  another.  In  the  same  way  a  statement  of  the  parti- 
culars at  a  meeting  is  evidence  to  prove  the  intention  ; 
also  (as  in  this  case)  a  letter  expressing  ^  approbation  of 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  -■  57 

tlie  procedure.     The  narrative  of  the  progress,  of  the    No.  e. 

^T     .         1     ^  .„,,„,.  .       .        r.  ,1  John  Grant 

National  Guard,  ot  the  ieeang  in  its  lavour,  all  go  to  and  others, 
show  the  purpose  as  much  as  if  the  facts  were  true.     It  HighCoun. 
is  part  of  the  folly  of  such  means  that  people  delude  ^  "848. " 
themselves.     But,  does  a  statement  that  may  be  false,  conspiracy 
avowing  vs^hat  the  purpose  is,  less  prove  that  purpose  be-      "  '*"'°' 
cause  it  occurs  in  a  pretended  narrative  of  what  has  not 
happened  ?    Therefore,  I  think  it  was  a  misapprehension 
to  say  that  the  document  in  Hardy's  case  was  not  evi- 
dence because  ,it  was  not  proved  that  the  songs  were 
sung.     The  fact  of  making  the  narrative  (though  false) 
may  prove  the  purpose  of  the  conspirators.     As  to  the 
objection  that  the  letter  was  not  received,  I  lay  that 
aside  as  of  no  importance.     It  is  good  evidence,  just  as 
statements  made  by  the  conspirators  here  would  affect 
him  when  in  London.     He  may  take  away  the  effect  by 
subsequent  explanation,  but  in  the  mean  time,  it  must  be 
received.     A  person  once  joining  in  a  conspiracy  may  be 
answerable  for  much  which  he  did  not  intend.     Assum- 
ing then  that  the  letter  was  not  seen  by  Ranken,  I  think 
it  good  evidence.     My  brother,  Lord  MoncreifF,  is  under 
a  mistake  in  supposing  that  the  document  was  admitted 
in  the  discussion  in  Hardy's  case,  to  which  reference  has 
been  made.    Another  document  was  received,  as  to  which 
the  facts  were  thought  to  be  different. 

Lord  Moncreiff. — I  see  it  was  so.  But  I  concur  on 
principle  in  receiving  this  document. 

The  Lord  Justice-Clerk  in  proceeding  to  charge  the 
Jury,  said — There  were  three  remarks  which,  in  the  out- 
set, he  felt  himself  bound  to  make.  The  first  was,  that 
it  had  been  urged  by  the  Crown,  and  not  the  less  strong- 
ly, from  the  intention  having  been  disclaimed  that  it  was 
of  great  importance  from  the  character  of  the  times  to 
put  down  the  doctrine  that,  under  any  circumstances, 
any  body  of  men  for  the  attainment  of  any  political 
object,  were  entitled  to  use  violence.  Whatever  may 
be  the  importance  at  any  particular  juncture  of  repress- 


58  CASES  BEFORE  THE  HIGH  COURT 

No.  6,     ing  such  a  doctrine,  it  must  be  remembered  that  such  a 

John  Grant  .  ,  .  .    ,      .         ,  .    .  ^       au    ' 

and  Others.  Consideration  cannot  weigh  ili  determining  as  to  the 
High  Court,  guilt  or  innocence  of  the  pannels.  Though  the  conse- 
1848.'  quences  of  a  verdict  of  not  guilty  might  be  fearful,  from 
Conspiracy  a  misapprehension  of  the  grounds  on  which  that  verdict 
B  itiou.  proceeded,  yet  if  you  cannot,  from  the  evidence  laid  before 
you,  find  the  pannels  guilty,  you  are  bound  to  declare 
them  innocent.  The  second  remark  applies  to  an  argu- 
ment yet  more  illegitimate,  and  very  mischievous,  which 
was  pressed  on  the  part  of  the  pannels,  that  you  should 
hesitate  to  deliver  a  verdict  of  guilty,  although  such 
might  be  your  conviction  on  your  oaths,  from  the  notion 
that  such  a  verdict  would  create  discontent  in  some  por- 
tion of  the  community ;  or,  that  it  might  have  the  effect 
of  elevating  the  accused  into  the  importance  of  political 
nlartyrs.  If  the  crimes  should  be  proved  to  your  satis- 
faction, you  will  be  violating  your  oaths  if  you  fail  to 
give  a  conscientious  verdict,  because  you  antipicate  inex- 
pedient results.  The  Jury  must,  from  the  facts  laid  be- 
fore them,  say  whether  the  pannels  are  guilty.  And  I 
may  add,  that  I  never  knew  a  verdict  returned  after  con- 
scientious deliberation,  that  did  not  carry  its  due  weight. 
Neither  have  I  found,  that  when  the  prosecution  is  just, 
that  a  verdict  of  guilty  was  attended  with  the  results 
pointed  to  by  one  of  the  counsel.  It  was  urged  upon 
you,  that  great  allowance  was  to  be  made  for  the  feelings 
of  men,  who,  unable  to  raise  themselves  above  the  bur- 
dens and  privations  of  daily  toil,  could  not  submit  to  the 
sight  of  greater  means  being  in  the  possession  of  the 
upper  classes,  whom  they  might  think  not  more  worthy 
than  themselves,  and  that  great  indulgence  on  that  score 
was  to  be  made  for  any  violence  of  language  which  may 
be  proved  against  the  pannels.  Now,  while  I  quite  con- 
cur in  the  feeling  that  great  latitude  may  be  taken  in 
the  free  discussion  of  public  events  and  of  political 
changes,  yet  I  know  no  more  mischievous  doctrine  than 
to  claim  toleration  for  violence  as  to  the  differences  in 
the  social  conditions  of  mankind.     Such  violence  is,  in 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  59 

trut^,  the  outbreaks  of  the  evil  heart  of  man,  rebelling    No.s. 
against  the  decrees  of  Providence  as  to  his  lot  and  situa-  ana  others. 
tion  in  life,  which  lead  him,  instead  of  bearing  such  dis-  High  Court. 
pensations  with  Christian  resignation,  to  attempt  to  in-     is^g/ 
volve  all  society  in  confusion  and  misery,  in  the  vain  hope  conspiracy 
that  he  may  benefit  by  the  spoil  of  others,  whom,  from  ^  Sedition. 
such  selfish  feelings,  he  is  ready  to  plunge  into  distress. 
This  is  the  plain  truth  as  to  all  such  topics  as  I  was  sorry 
to  hear  descanted  upon  by  one  of  the  counsel.     But, 
really  such  declamation  was  quite  beside  the  present  case. 
We  have  fortunately  no  evidence  that  the  pannel,  for 
whom  such  mischievous  views  were  urged,  had  been  actu- 
ated by  any  such  dangerous  and  wicked  and  unchristian 
feelings.     All  that  is  alleged  against  him,  or  can  be  col- 
lected from  the  case  as  insisted  in  by  the  Crown,  is  simply 
seditious  language  and  proceedings,  in  the  course  of  ad- 
vocating and  attempting  ordinary  seditious  objects,  tend- 
ing to  create  insurrection.     I  am  one  very  ready  to  make 
the  utmost  allowance  for  the  language  used  by  men  at 
political  meetings,  who  know  very  little,  from  their  pre- 
vious pursuits,  of  the  import  of  what  they  are  uttering, 
and  have  no  definite  objects  in  view.     But,  while  great 
'freedom  may  be  claimed  in  such  a  case,  that  is  a  very 
different  thing  indeed  from  the  attempt  to  justify,  or 
palliate,  or  excuse,  violence  of  language  and  incendiary 
declamation,  because,  forsooth,  those  who,  by  the  decrees 
of  Providence,  must  labour  for  their  bread,  cannot  sub- 
mit to  the  inequalities  of  human  society,  and  cannot  re- 
frain from  incitements  to  general  confusion,  in  the  hope 
of  bettering  their  own  condition.     The  latter  feeling  is, 
I  again  say,  the  rebellion  of  the  evil  heart  of  man  against 
the  dispensations  of  Providence,  and  is  the  very  wicked- 
ness which  the  spirit  of  evil  excites,  as  the  most  prolific 
sources  of  fearful  crime.     Fortunately  we  have  no  such 
case  here.     Nor  can  I  believe  that  the  case  of  the  pan- 
nel, if  he  is  found  by  you  to  be  guilty,  will  be  viewed  by 
his  own  class  (for  I  have  a  better  opinion  of  their  religi- 
ous and  laoBal  feelings),  as  an  instance  of  a  man  unjustly 


(50  CASES  DEFORE  THE  HIGH  COURT 

No.  6.  punished  for  trying  to  better  his  own  condition  and  that 
aj^d  othere.  of  his  associates  :  The  lower  orders  in  this  country  know 
High  Court,  well  that  anarchy,  and  general  confusion  and  disorder, 
^isis.^'  would  only  -add  to  their  privations.  I  have  adverted  to 
Conspiracy  theso  topics,  because  I  think  they  ought  to  be  banished 
&  Sedition,  altogether  from  courts  of  justice. 

The  third  remark  I  have  to  make  is,  that  in  judging  of 
such  offences  as  these,  while  it  is  on  the  one  hand  true,  that 
the  extravagance,  the  folly,  and  the  absurdity  of  the  lan- 
guage used,  may  be  of  great  importance  in  enabling  you 
to  come  to  the  conclusion,  whether  the  speeches  were 
used  with  such  a  deliberate  purpose — a  seditious  purpose, 
as  is  imputed  in  the  indictment ;  yet,  on  the  other  hand,  it 
is  dangerous  to  hold  that  because  they  are  silly,  they 
may  not  also  be  mischievous.  It  would  be  hazardous,  if 
you  should  think  the  pannels  guilty  of  forming  the  Na- 
tional Guard,  yet  because  you  think  the  project  extrava- 
gant, that  therefore  it  is  to  be  treated  only  as  folly,  and 
a  verdict  of  acquittal  returned  on  that  ground.  Such  a 
course  is  not  reconcileable  with  law,  or  with  the  expe- 
rience of  man,  as  to  the  results  which  may  follow  from 
many  extravagant  and  very  silly  proceedings. 

Whatever  difficulties  might  have  been  expected  to  arise 
in  point  of  law,  he  was  happy  to  say  that  none  really  ex- 
isted in  the  case  before  the  Court.  The  whole  question 
was,  were  the  charges  made  against  the  pannels  proved  ? 
If  they  were,  there  could  be  no  doubt  they  amounted  to 
the  crimes  of  conspiracy  and  sedition,,  subject  to  the  de- 
termination of  the  Court  upon  the  construction  of  the 
charge  of  conspiracy,  as  to  whether  it  was  in  fact  any  thing 
else  than  sedition.  His  Lordship  then  went  over  the 
whole  proof,  commenting  upon  it  and  explaining  its  bear- 
ing as  he  went  along. 

The  Jury,  after  deliberating  for  half  an  hour,  return- 
ed the  following  verdict : — 

'  The  Jury  unanimously  find  the  charge  of  conspiracy 
'  against  the  three  panels,  as  libelled,  not  proven. 


AND  CIRCUIT  COliRTS  OP  JUSTICIARY.  61 

■    '  The  Jmy  also  unanimously  find  John  Grant  not  j^^^o-g^^^^^ 

'  guilty  of  sedition,  as  libelled.  andothpra. 

'  The  Jury  further  unanimously  find  Robert  Hamilton  ^jf^^^"'^'"*- 

*  guilty  of  using  language  calculated  to  excite  popular     i848. 

*  disaffection  and  resistance  to  lawful  authority.  conspiracy 

'  And,  by  a  majority  of  one,  find  Henry  Ranken  guilty 
'  of  using  similar  language.'  * 

The  Lord  Justice-Clerk. — Gentlemen,be  goodenough 
to  observe,  in  regard  to  that  part  of  the  verdict  which 
contains  the  specialty  finding  Hamilton  and  Ranken 
guilty  of  using  language  calculated  to  excite  popular  dis- 
aflfection  and  resistance  to  lawful  authority,  that  this  is 
the  description  of  sedition  libelled.  Now,  to  make  your 
verdict  correct,  you  should  determine  whether  they  are 
guilty,  or  not  guilty,  of  sedition,  to  any  extent  you  please. 
You  may  say,  for  example,  that  they  are  guilty  of  sedi- 
tion, in  so  far  as  they  used  language  calculated  to  excite 
popular  disaffection  and  resistance  to  lawful  authority. 

The  Chancellor  of  the  Jury. — That  is  what  we  mean, 
my  Lord. 

Lord  Justice-Clerk;. — In  using  the  word  '  calculated,' 
do  you  mean  to  leave  out  the  word  '  intended ;'  or,  does 
your  verdict  mean  to  embrace  both  ? 

The  Chancellor. — We  meant  purposely  to  leave  out 
the  word  '  intended.' 

The  Verdict  was  then  recorded  as  follows : — '  The 
'  Jury  unanimously  find  Robert  Hamilton  guilt  of  sedi- 
'  tion,  in  so  far  as  that  he  used  language  calculated  to 
'  excite  popular  disaffection  and  resistance  to  lawful 
'  authority ;  and,  by  a  majority  of  one,  find  Henry  Ranken 
'  guilty  of  sedition  in  the  same  terms.' 

Logan  thereupon  objected,  that  this  verdict  as  re- 
turned, was  insufficient  to  support  a  sentence. — In  re- 
spect of  which  objection,  the  Court  continued  the  diet 
until  the  18th  of  November. 


62  CASES  BEFORE  THE  HIGH  COURT 

James        On  the  motion  of  the  Loed  Advocate,  the  Cotirt  de- 
j^.  °"^"^'-  serted  the  diet  against  the  pannel  James  Gumming,  sim- 
Nav.  IS.  pliciter,  and  dismissed  him  from  the  bar. 


Conspiracy 
&  Sedition. 


Preaent, 


^llll^'  The  Lord  Justice-Clerk, 

Lords  Mackenzie,  Moncreiff,  Medwyn,  Cockbubn,  and  Wood. 

No.  6.  The  pannels,  Ranken  and  Hamilton,  having  been 
and  o^r^!  placed  at  the  bar,  the  Lord  Advocate  moved  for  sentence 
Hi-'h  Court,  against  them  in  the  usual  form. 

^mV^'  Whereupon  Logan,  in  support  of  the  objection  to  the 
;:; — : verdict,  urged,  that  in  page  six  of  the  indictment  there  was 

Conspiracy  '       o      '  r   a 

&.  Sedition.  anallegationofintention,which  overrode  the  whole  charge. 
In  a  conversation  which  occurred  between  the  Justice- 
Clerk  and  the  Jury,  the  latter  explained  their  meaning. 
Their  attention  having  been  called  to  the  particular 
charge,  and  it  having  been  pointed  out  to  them  that  the  in- 
dictment charged  that  the  language  used  was  intended, 
as  well  as  calculated,  to  produce  the  effect  charged,  the 
Jury  stated  that  they  purposely  omitted  the  word  in- 
tended ;  the  verdict  was  defective,  in  respect  that  the 
terms  used  by  the  Jury  did  not  amount  to  sedition,  and 
were  defective  in  an  essential  quality  of  the  crime. 

Without  going  into  the  general  question,  that  dole  is 
necessary  in  every  crime,  intention  was  undoubtedly 
necessary  to  constitute  sedition.  It  was  necessary  also 
to  charge  it  in  an  indictment;  though  it  was  not 
necessary  to  prove  what  actually  passed  in  the  mind  of 
the  pannel,  yet,  where  the  Jury  negatived  intention,  the 
verdict  was  not  for  the  prosecutor,  but  for  the  pannel ; 
Hume,  vol.  i.  p.  351.  He  more  expressly  sets  forth 
necessity  of  intention,  vol.  i.  p.  553.  It  was  not  con- 
tended that  calculated  might  not  sometimes  comprehend 
intended.  The  plans  of  a  surveyor  are  said  to  be  cal- 
culated to  promote  his  work,  and  they  are  also  intended 
so  to  do.  But  it  was  necessary  that  the  words  should 
be  not  only  intended,  but  in  themselves  suited  and  fitted 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  63 

to  promote  the  object  in  this  case.     When  the  Intention    No.  6. 
was  brought  before  the  Jury  they  found  the  words  cal-  and  others. 
culated,  and  negatived  the  inference  of  intention.  HighCom-t. 

The  LoED  Justice-Cleek. — What  I  want  to  know  is,     Ills. ' 
what  Mr  Hume  means  by  suited.  Conspiracy 

Logan. — He  means  fitted.      Suited  and  calculated  ^  ^^'^*°"- 
mean  the  same. 

Lord  Mackenzie. — You  mean  the  words  are  capable 
of  that  interpretation. 

Logan,  in  illustration,  referred  to  cases,  Hume,  vol.  ii. 
p.  457,  to  show  the  converse  of  his  proposition,  cases  in 
which  a  special  verdict  was  held  good.  In  vol.  xxiii., 
State  Trials,  there  were  several  indictments  shewing  the 
necessity  of  libelling  intention. 

Lord  Justice-Cleek. — There  are  at  least  a  dozen 
other  indictments  in  that  volume. 

Logan. — Yes,  but  they  all  more  or  less  explicitly  set 
forth  the  necessity  of  intention. 

Lord  Justice-Clerk. — Not  as  I  read  them.  You 
need  not  refer  to  those  containing  charges  of  convention 
and  conspiracy ;  I  allude  to  those  confined  to  sedition. 

Logan. — It  was  clear,  on  the  authority  of  Hume,  that 
malus  animtis  was  of  the  essence  of  sedition ;  and  from 
indictments  extending  over  twenty  years,  in  which 
wicked  intention  was  charged  in  as  many  words,  or  neces- 
sarily implied  by  the  way  in  which  facts  were  set  forth 
therein,  that  it  had  always  been  so  considered.  In  ana- 
logous cases,  where  the  verdict  negatived  the  essence  of 
the  crime,  it  was  not  a  verdict  on  which  sentence  could 
follow.  Take  theft,  for  example,  where  the  animus 
furandi  was  negatived.  In  many  old  cases  the  pannels 
were  found  guilty  of  carrying  away,  but  no  sentence  fol- 
lowed ;  Hume,  vol.  i.  p.  73.  Again,  in  fire-raising,  it  was 
held  to  be  no  verdict  unless,  by  necessary  implication,  it 
appeared  that  the  fire  was  applied  with  felonious  purpose. 

LoED  Justice-Cleek. — That  crime  bears  the  wilful 
nature  in  the  major. 

Logan. — But  here  the  major  sets  forth  that  words 


64  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  calculated  and  intended  to  produce  a  certain  effect  (the 
and  othera.  Jury  havc  found  they  were  not  intended),  and  the 
High  Court,  analogy  of  the  cases  referred  to  was  applicable.  Take 
^°8"48.^"  deforcement,  and  suppose  the  crime  being  set  forth  by 
Conspiracy  nomen  juHs  only,  the  Jury  find  guilty  of  deforcement,  but 
&  Sedition.  jjQ^.  proven  that  the  party  on  whom  it  was  committed 
was  an  officer  of  the  law. 

Lord  Justice-Clerk. — There  is  no  analogy. 
Logan. — In  hamesucken,  suppose  it  found  that  the 
party  did  not  enter  the  house  with  the  purpose  of  com- 
mitting the  assault.  The  case  of  Stein,  Hume,  vol.  ii. 
p.  459,  was  directly  in  point.  The  major  set  forth  sedi- 
tion, and  the  prosecutor  was  bound  to  set  forth  in  the 
minor  facts  relevant  in  law  as  amounting  to  that  crinie, 
having  thought  it  necessary,  not  only  to  set  forth  that  the 
words  charged  were  seditiously  spoken,  but  libelled  and 
undertaken  also  to  prove  the  intention  with  which  they 
were  used.  Had  the  indictment  not  contained  this,  there 
would  have  been  an  objection  to  its  relevancy,  as  might 
be  seen  from  the  cases  and  the  analogy  quoted.  The 
Court,  however,  were  not  dealing  with  relevancy,  but 
with  the  finding  of  the  Jury  on  the  facts ;  and  it  must 
be  observed,  that  the  words  '  guilty  of  sedition'  were  not 
in  the  original  verdict,  and  the  second  part  of  it  was 
clearly  intended  to  negative  the  allegation  that  the 
words  were  used  with  the  intention  libelled.  It  is  not 
a  good  answer  that  the  Jury  have  returned  a  verdict  on 
which  a  presumption  of  guilt  might  follow.  The  Court 
are  bound  to  deal  with  the  verdict,  and,  as  it  stood  in 
connection  with  the  charge ;  if  it  did  not  amount  to  the 
offence  charged  it  was  irrelevant ;  Hume,  vol.  ii.  p.  448. 
The  Jury  had  not  found  guilty  of  sedition  merely,  but 
guilty  '  in  so  far  as,'  &c.  The  question  whether  this 
was  a  sufficient  finding,  must  depend  on  the  determina- 
tion whether  intention,  either  express  or  implied,  was  of 
the  essence  of  the  crime. 

MoNCREiFF. — The  primary  question  was,  what  did  the 
Jury  signify  ?  Hume,  vol.  ii.  p.  456.     If  under  an  in- 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  65 

dictment,  charging  calculated  and  intended,  the  Jury    No.  6. 
find  the  words  calculated,  but  purposely  omit  intended,  and  others. 
they  must  have  meant  that  it  was  not  intended  to  pro-  riigi,  court. 
duce  the  result.     It  could  not  be  doubted  that  intention   ^"848.^" 
was  of  the  essence  of  the  crime.     It  might  not  be  neces-  conspiracy 
sary  to  libel,  or  to  find  it  in  the  verdict  in  terms,  as  it  ^  s^^'*'°"- 
might  be  deduced.    But  the  condition  of  the  argument 
was,  that  it  was  negatived.     If  the  pannels  were  tried 
for  using  reckless  language,  that  was  no  crime  per  se ; 
if  the  indictment  had  libelled  calculated,  but  not  intended, 
that  would  not  have  amounted  to  sedition.    Here  the 
verdict  negatived  the  terms  of  the  indictment. 

Craufubd. — In  the  major,  the  charge  was  simply  se- 
dition, which  required  no  explanation  in  either  the  in- 
dictment or  the  verdict.  The  pannels  put  their  state- 
ment incorrectly,  when  they  said  that  the  charge  was, 
that  words  were  used,  calculated  and  intended  to  pro- 
duce a  certain  effect.  The  charge  was,  that  they  openly 
and  seditiously  used  words,  and  the  rest  is  descriptive, 
and  intention  was  implied  in  the  charge.  Starkie  on 
Libel,  2.  331.  And  at  p.  344,  Starkie  draws  the  dis- 
tinction between  doing  things  in  their  own  nature  law- 
ful, and  those  by  nature  unlawful.  On  this  principle 
there  was  no  criminal  intention  to  be  stated,  or  found, 
or  proved  as  a  separate  matter.  Where  the  words 
were  unlawful,  unless  want  of  intention  be  clearly  and 
positively  found,  the  verdict  was  a  conviction.  The 
cases, occurring  at  end  of  last  century  and  beginning  of 
this,  were  of  two  classes.  The  one,  where  the  prisoners, 
though  not  actually  accused  of  conspiracy,  were  yet 
connected  with  a  convention,  and  the  intention  to  con- 
spire was  necessarily  set  forth.  In  the  other  cases, 
where  there  was  no  conspiracy,  the  word  intended  is  not 
introduced.  But  the  case  of  M'Laren  and  Baird,  State 
Trials,  vol.  xxxiii.,  is  still  more  explicit.  In  particular, 
the  opinion  of  the  Justice-Clerk,  p.  127.  Every  crime 
in  which  will  was  involved,  implies  such  an  amount  of 
iiltention  as  to  make  it  criminal 


66  CASE8  BEFORE  THE  HIGH  COURT 

No.  6.        An  /explanation  was  made  by  the  Jury,  of  which  I 

and  Others,  give  the  pannels  the  full  benefit.     If  this  was  an  expla- 

High  Court,  nation  discharging  from  the  offence  the  general  intention 

Tm. '    involved  in  sedition,  he  could  not  ask  for  sentence.    But 

Conspiracy  the  Jury  had  purposely  remained  silent  as  to  such  im- 

&  Sedition. jjjjgjj  intention,  in  so  far  as  it  was  legally  involved  in  the 

crime  of  sedition.    They  had  in  general  terms  found  guilty 

of  sedition,  and  that  finding  must  have  its  legal  effect. 

Lord-Advocate. — The  pannels  were  charged  with 
sedition,  and  with  speaking  on  certain  occasions  certain 
words,  characterised  in  a  particular  manner.  The  Jury 
returned  the  verdict  now  under  consideration.  The  in- 
dictment says  intended  and  calculated.  The  point  to  be 
made  out  on  the  other  side  is,  that  it  was  necessary  for 
the  prosecutor  to  libel  intention  as  distinct  from  calcu- 
lated. Looking  at  the  indictment  on  one  hand,  and  the 
verdict  on  the  the  other,  he  found  nothing  to  stop  him 
from  saying  that  the  verdict  was  good,  and  that  it  must 
have  its  legal  effect.  The  pannels  said  he  was  not 
to  stop  at  the  record.  An  explanation  was  made  by 
the  Jury.  Though  he  was  thus  going  to  extraneous 
matter,  he  would  not  object,  as  the  proceeding  which 
took  place  between  the  Court  and  the  Jury  was  cotem- 
poraneous  with  the  verdict.  It  would  be  strange  if  the 
explanation  was  to  nullify  the  verdict.  The  Jury  find 
guilty  of  sedition,  and  then  proceeded  to  say,  in  so  far  as 
he  used  words  calculated  to  produce  that  which  is  sedi- 
tion ;  they  simply  abstain  from  saying  anything  of  in- 
tention. Had  they  refused  to  specify  intention  where  it 
was  necessary  to  state  it  specifically,  it  would  have  been 
a  different  matter.  That  is  not  the  case  here.  They 
found  all  the  criminal  intent  necessary  for  them  to  find 
to  be  averred,  when  they  found  guilty  of  sedition;  and 
if  they  had  not  found  with  respect  to  the  specific  intenr- 
tion,  neither  have  they  negatived  the  intention. 

MoNCEEiFF.— It  is  important  to  be  cautious,  lest  per- 
sons not  convicted  by  the  jury  should  be  punished.  The 
verdict  must  be  clear,  and  the  prisoners  have  the  benefit 
of  any  doubt.     He  did  not  concede  that  it  was  enough 


AND  CIRCUIT  COURTS  6F  JUSTICIARY.  67 

for  the  prosecutor  to  put  down  words,  and  simply  charge    No.  6. 

^        ,.  .  S        ,  1        .       ^  *'  ?.    John  Grant 

them  as  seditious.  In  whatever  way  the  intent  was  h-  and  others. 
belled,  it  must  be  done  either  inferentially  or  directly.  High  Court. 
If  this  was  true,  the  next  proposition  was  certain,  that  "lis. ' 
intention  was  not  only  of  the  essence  of  the  crime,  but  conspiracy 
a  fact  to  be  proved.  Not  a  separate  intent  apart  from  *  s^^'*'""- 
the  words;  but  it  was  as  necessary  to  prove  the  intent 
as  the  words.  If  the  prosecutor  undertook  to  prove  to 
the  Jury  that  the  words  were  calculated  and  intended 
to  produce  a  particular  result,  and  then  said  one  meant 
the  other,  he  contradicted  his  indictment.  Two  things 
were  to  be  proved  under  such  an  indictment,  viz.,  both 
the  fitness  and  the  intention.  Whether  intent  was  to  be 
inferred  from  words,  or  from  facts,  it  must  be  proved. 
4.  Barnewell  and  Alderson,  430 ;  King  v.  Burdett ; 
M'Laren  and  Baird  supported  this  proposition.  Wickedly 
and  feloniously  was  there  set  forth,  which  implied  intent. 
The  question  came  to  be,  had  they  done  this?  Nor 
would  the  verdict  imply  it ;  but  were  the  Jury  satisfied 
thereof.  The  pannels  were  entitled  to  assume,  that 
when  the  Jury  refused  to  find  intention,  they  found  inten- 
tion not  proved.  They  were  not  to  construe  the  verdict 
to  the  effect  of  leaving  the  Jury  to  find  on  matters  of 
law.  If  they  find  guilty  of  sedition,  coupled  with  an 
explanation  showing  that  they  did  not  find  what  in  law 
was  sedition,  the  verdict  was  a  verdict  of  acquittal.  The 
question  was,  what  did  the  Jury  mean  by  sedition? 
They  have  explained  guilty  of  sedition,  if  speaking  those 
words  is  sedition,  but  not  otherwise.  The  Jury  were 
not  satisfied  of  the  criminal  intent ;  they  have  negatived 
it  by  implication,  and  there  is  nothing  to  shew  that  if 
they  had  been  sent  back,  they  would  not  have  acquitted. 
The  Jury  might  have  been  satisfied  that  the  words  were 
spoken  without  the  intention  libelled,  and  may  have 
meant  to  have  said  so  ;  and  if  so,  the  pannels  are  not 
guilty  of  sedition. 

The  Court  being  divided  in  opinion,  adjourned  the  diet 
until  the  25th  of  November. 


Nov.  25. 
1848. 


68  CASES  BEFORE  THE  HIGH  COURT 

Present, 

The  Lord  Justice -Clerk, 

Lords  Mackenzie,  Monckeifp,  Medwyn,  Co6kburn,  and  Wood. 

No.  6.         Their  Lordships   then  delivered   the   following   opi- 

JoliD. Grant     • 

and  Others.  HIOHS  : 

High  Court.     The  Lord  Justice-Clekk. — In  every  view  which  has 
1848^.     been  presented  against  this  verdict,  there  are,  in  my  opi- 
Conspiracy  nion,  either  unwarranted  assumptions  in  point  of  fact,  or 
&  Sedition.  ^^^^  grave  misconceptious  in  point  of  law. 

The  jury  stated,  in  answer  to  a  question  from  myself,  that 
they  purposely  left  out  the  word  intended  in  reference  to 
the  averment  at  the  close  of  the  indictment,  descriptive  of 
the  character  of  the  language  used  by  the  pannels.  This, 
therefore,  was  matter  of  deliberation  before  they  settled 
the  terms  of  their  verdict ;  and  the  eifect  of  this,  in  their 
minds,  must  also  have  been  well  considered,  because, 
against  one  of  the  pannels,  the  verdict  was  only  returned 
by  a  majority  of  one.  Then,  after  this  resolution,  they 
proceed,  as  they  ultimately  explained  their  verdict,  and 
stated  what  was  their  purpose  throughout,  to  find  the 
pannels  guilty  of  sedition,  in  so  far  as  that  they  used  lan- 
guage calculated  to  excite  popular  disaffection  and  re- 
sistance to  lawful  authority.  This  is  the  result  arrived 
at,  then,  after  their  deliberation  on  the  word  '  intended,' 
and  that  such  a  result  should  be  equivalent  to  a  verdict 
of  not  guilty,  is  a  conclusion  opposed,  in  my  apprehen- 
sion, to  every  sound  legal  principle  and  to  the  plainest 
suggestions  of  common  sense.  Had  the  point  not  oc- 
curred on  a  verdict  in  a  criminal  case,  I  do  not  believe 
that  such  a  notion  would  have  occurred  to  any  mind. 

Indictments  for  sedition,  as  framed  according  to  the 
law  and  practice  of  Scotland,  generally  set  forth  in  the 
minor,  that  the  accused — '  wickedly  and  feloniously  used,' 
or  '  seditiously  used'  certain  language,  which  is  there  de- 
scribed as  being  of  a  certain  character,  generally  said 


AND  CIRCUIT  COUKTS  OF  JUSTICIARY.  69 

to  be  '  calculated^  sometimes,  but  not  so  often,  '  intended     No.  6. 

.  John  Grant 

'  and  calcmated,'  sometimes  '  tending,'— sometimes  is  not  and  others. 
so  described  at  all,  but  left  to  the  construction  of  the  High  Court. 
Court  and  Jury,  and  merely  said  to  be  '  seditious.'  isit. 

Now,  two  remarks  arise  on  this  the  settled  style  of  Conspiracy 

•^  &  Sedition. 

the  indictments. 

1.  That  the  real  and  proper  averment  in  the  minor,  of 
the  guilt  of  the  pannels,  is  in  the  allegation  that  they 
seditiously  used  the  language  imputed  to  them.  This  is 
truly  the  proper  allegation  of  guilt ;  The  appropriate 
place  for  it :  The  proper  form  of  it.  The  description  of 
the  character  of  the  language  used  is  a  different  allega- 
tion,— ^not,  in  truth,  necessary  at  all, — and  when  used, 
going  not  so  much  to  the  general  guilt  as  to  a  particular 
quality  attached  to  the  particular  words,  in  addition  to 
their  plain  import,  in  so  far  as  it  is  also  said,  that  the  pre- 
cise effects  which  they  are  calculated  to  produce  were  in 
the  actual  intention  of  the  party  in  the  clioice  of  them. 
Now,  this  particular  averment  may  be  established  in 
whole  or  in  part,  when  it  is  set  forth  in  the  indictment. 
But  the  failure  to  prove  part  of  that  particular  averment 
— e.  g.  the  failure  to  prove  that  the  words  were  intended 
to  produce  the  exact  effect  which  it  is  proved  they  are 
calculated  to  produce, — does  not  necessarily,  either  in 
legal  principle,  or  by  the  style  of  indictments,  or  by  the 
reason  of  the  thing,  negative  the  general  averment, 
that  the  pannel  used  such  language,  not  innocently,  but 
seditiously,  looking  to  the  place,  the  occasion,  the  num- 
bers present,  the  circumstances  of  the  time,  the  wilful 
recklessness  of  all  consequences,  the  violation  of  his  duty 
of  allegiance,  and  the  general  purpose  of  mischief  which 
the  averment  of  '  seditiously  speaking'  them  imports. 

If  the  language  is  not  in  itself  calculated  to  produce 
any  impression  tending  to  evil  results  on  the  minds  of 
the  auditors — if  the  language  is  indifferent,  or  bears  a 
meaning  apparently  foreign  to  a  seditious  meaning,  but 
was  intended  to  import  something  different,  and  to  be  so 
understood  and  applied,  then  the  particular  intent  with 


70  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    -which  the  words  were  actually  in  that  case  spoken,  and 

John  Grant  "  i.        I,"   V 

and  Others,  not  their  teadency,  comes  to  be  the  averment  wnicn 
High  Court,  must  be  made  out ;  e.  a.  If  the  words  were,  '  God  save 

Nov.  25.  '         ^  ,  ,        .       J   • 

1848.  the  Queen' — but  this  was  meant  and  understood  m  some 
Conspiracy  caut  language  of  seditious  orators,  to  mean,  '  Let  us  de- 
'  ""■  pose  the  Queen,'  and  were  spoken  in  truth  as  an  exhorta- 
tion to  that  effect,  it  would  be  necessary  to  aver  and 
prove  the  special  intent  with  which  such  words  were 
spoken,  for  their  tendency  would  not  apparently  pro- 
duce any  evil  result :  And  hence,  in  addition  to  aver- 
ring that  such  words  were  '  seditiously  spoken,'  the  actual 
and  special  meaning  or  intent  with  which  these  particu- 
lar words  were  spoken,  must  be  libelled  and  proved. 
So  also  in  another  class  of  seditions,  such  as  was  also 
charged  in  this  indictment — a  conspiracy  to  effect  a 
change  in  the  Constitution  by  force  and  violence ;  that 
particular  intent  is,  then,  of  the  essence  of  the  crime,  and 
the  acts,  however  seditious  in  themselves,  would  not 
prove  the  charge,  if  such  was  not  made  out  to  be  directly 
the  design  and  purpose  of  the  conspiracy. 

When,  on  the  other  hand,  the  plain  and  direct  ten- 
dency of  the  words  or  writing  is,  in  the  opinion  of  the 
jury,  to  produce  evil  results,  because  so  calculated,  then 
the  particular  intent  in  the  mind  of  the  speaker  as  to  the 
effect  of  these  words,  provided  he  spoke  or  published 
them,  not  innocently,  but  looking  to  all  the  circumstances, 
unlawfully,  comes  to  be  immaterial  to  the  offence  of  se- 
dition and  to  the  averment  of  guilt  in  the  indictment. 

2.  The  second  remark  I  have  to  make  is,  that  when  a  ver- 
dict on  such  an  indictment  as  this,  or  on  any  indictment  for 
any  other  offence  in  Scotland  is  returned,  finding  pannels 
guilty,  it  is  never  of  the  offence  in  the  abstract  stated  in 
the  major.  It  applies  to  the  facts  in  the  minor.  Hence,  a 
verdict,  guilty  of  sedition,  in  so  far  as  he  used  language 
calculated,  &Ci,  need  not  repeat,  and  such  verdicts  never 
do  repeat,  in  so  far  as  he  seditiously  used,  &c.  This  is 
quite  a  clear  and  fixed  point.  In  a  case  of  theft,  if  the 
pannels  stole  only  some  of  the  articles,  or  did  not  steal 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  71 

them  from  a  lockfast  place  as  libelled,  or  under  trust  as     No.  6 

■*  John  Grant 

labelled,  as  aggravations,  if  the  jury  return  a  verdict  and  others. 


guilty  of  theft,  in  so  far  as  that  he  took  the  v^atch,  leaving  High  court. 
out  money,  or  took  them  from  an  open  drawer,  or  in  a     isis. ' 
way  which  excludes  the  trust,  it  is  not  necessary  for  them  conspiracy 
to  say  further,  in  so  far  as  that  he  theftuously  took  them.  ^  ^  '*'""' 
The  words  guilty  of  theft,  completely  establishes  the  cha- 
racter of  the  act  of  taking.     Just  so,  guilty  of  sedition, 
establishes  the  character  of  the  act  of  using  the  language, 
else  the  party  could  not  have  been  found  guilty  of  sedi- 
tion.    This  is  a  point  so  thoroughly  fixed,  settled,  and 
plain,  that  although  I  alluded  to  it  in  the  course  of  Mr 
Craufard's  address,  it  was  not  attempted  to  be  contested 
by  Mr  Moncreiff  in  reply.     It  is  a  point,  however,  ex- 
tremely important  in  the  consideration  of  this  verdict,  and 
of  its  application  to  the  indictment.     In  my  apprehen- 
sion decisive,  unless  the  whole  averment  in  this  indict- 
ment is  necessary  to  the  crime  of  sedition. 

In  all  such  questions,  the  practice  of  the  Court — that 
is  the  style  and  structure  of  indictments  in  a  variety  of 
cases,  all  of  which  have  been  under  the  -notice  of  the 
Court  and  found  relevant — comes  to  be  the  law  of  the 
Court.  This  proposition  has  received  the  ftill  assent  of 
the  whole  Bench  on  many  occasions,  and  especially  on 
one  late  occasion,  (Janet  Campbell,  Nov.  4.  1846),  when 
only  one  judge  dissented  from  this  rule  of  law,  on  a  very 
important  matter,  so  deduced  from  the  practice  of  the 
Court  as  often  acted  upon. 

Indeed,  in  criminal  law,  I  know  nothing  truly  more 
dangerous,  and  if  any  question  as  to  the  privileges  of  the 
subject  can  be  supposed  to  be  involved,  however  indi- 
rectly, in  this  case,  more  likely,  I  should  say,  to  be  pre- 
judicial to  the  interests  of  the  subject,  than  loose,  un- 
authorized, and  hasty  departure  from  settled  practice, 
because  in  one  case  a  pannel  or  the  prosecutor  may  have 
accidentally  an  interest  to  try  to  free  himself  from  the 
rules  of  such  practice. 

Attaching,  then,  great  importance  to  practice,  the  first 


72  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    question  I  address  myself  to  is  this — was  it  necessary  in 
and  others,  an  indictment  for  sedition,  for  the  public  prosecutor,  who 
High  Court,  lias  averred  that  the  words  were  '  seditiously  used,'  to  set 
1848. '   forth  that  the  words  were  intended  as  well  as  calculated. 
Conspiracy  to  produce  the  results  ascribed  to  them  ?     If  left  out,  is 
^ '  """■  the  offence  complete — is  the  indictment  charging  the 
offence  equally  good  ?     And  if,  when  purposely  left  out 
by  the  prosecutor,  the  indictment  is  good,  is  it  necessary 
that  the  jury  should  find  what  the  prosecutor  might  thus 
competently  leave  out  as  immaterial  ?     If  the  indictment 
charging  sedition  is  good,  when  it  says  the  words  '  sedi- 
'  tiously  used'  were  calculated  to  produce  the  results  in- 
volved, but  ex  proposito  leaves  out  the  allegation  that 
they  were  intended,  can  a  verdict  be  bad  which  finds 
guilty  of  sedition,  in  so  far  as,  that  he  used  words  calcu- 
lated to  produce  the  evil  results,  but  omits  purposely  the 
further  and  separate  averment  that  they  were  used  with 
that  particular  intent  ? 

Distinctly,  aiid  in  terms,  the  pannels'  counsel  did  not 
plead  that  an  indictment  would  be  bad,  unless  it  was  said 
that  the  words  were  intended  to  produce  the  particular 
results  ascribed  to  them.  It  was  said  the  proposition  was 
not  admitted,  but  that  they  would  waive  arguing  the 
point.  But  the  point  is,  in  my  judgment,  at  the  founda- 
tion of  the  whole  matter — and  no  opinion  can  be  sound 
or  satisfactory  which  is  not  based  on  the  consideration  of 
the  rule  and  practice  of  the  Court  on  that  leading  point. 
Let  us  see  how  the  practice  stands, — and  this  is  the 
more  important,  because  in  nearly  all  the  cases  to  be  re- 
ferred to,  the  pannels  were  aided  by  counsel  of  the 
greatest  eminence  and  talent. 

1.  Berry  and  Robertson,  1793.  Here,  the  question,  if 
doubtful,  arose  even  on  the  major  proposition,  which  set 
forth,  '  the  wickedly  and  feloniously  printing  any  sedi- 
'  tious  writing  or  pamphlet,  containing  false,  wicked,  and 
'  seditious  assertions,  calculated,'  &c.,  and  then  the  pub- 
lishing of  any  such.  Then  the  minor  merely  said  that 
they  printed  and  published,  wickedly  and  feloniously,  a 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  73 

'  seditious' pamphlet.     The  counsel  w  ere  Mr  Wight  and     No.  «> 

,,     T^,        ,  ,       ,  ,  .        .         ,  ,  T.       John  Grant 

Mr  Fletcher — both  zealous  constitutional  lawyers,  cut  and  others. 
no  objection  was  stated  to  the  relevancy,  though  remarks  HighCourt. 
were  made  as  to  the  object  of  the  pannels  being  only  to  isis.'^' 
make  gain  by  the  sale — a  purpose  perfectly  consistent  conspiracy 
with  the  seditiously  publishing ;  for,  I  believe,  in  nine  ^  *""' 
cases  out  of  ten,  gain,  celebrity,  collection  of  tribute,  and 
so  forth,  are  the  real  motives,  and  that  the  parties  speak- 
ing or  publishing  the  sedition,  know  that  their  trade 
would  be  destroyed  by  any  actual  commotion  ;  and  often 
exhort  to  peace,  at  the  v.ery  same  time  they  use  the  most 
inflammatory  and  seditious  language.  The  jury  found 
that  the  one  printed  and  published, — ^the  other  published 
only, — the  pamphlet  libelled  on.  This  verdict  was  objected 
to  by  Mr  Wight,  and  afterwards  also  by  Mr  Henry 
Erskine.  The  argument  is  most  instructive.  Mr  Wight 
contended  that  the  allegation  that  the  pamphlet  was  se- 
ditious, or  calculated  to  do  so  and  so,  was  not  affirmed 
by  the  verdict.  In  that  argument,  the  tendency  of  the 
writing  is  taken  to  be  the  point  to  be  established  in  a 
case  of  sedition.  Then  he  argued  the  criminal  purpose 
or  illegality  of  the  act,  was  averred  in  the  indictment,  in 
the  words  '  wickedly,  and  feloniously ;'  and  that  this,  the 
proper  averment  of  the  purpose  or  intention,  was  not  af- 
firmed by  the  verdict.  In  that  debate,  the  illegality  of 
the  act  is  properly  taken  on  both  sides  to  be  averred  in 
that  part  of  the  indictment ;  but  it  is  not  supposed  that 
the  particular  intent  which  might  be  ascribed  to  any  par- 
ticular words,  was  of  the  essence  of  the  crime.  As  Mr 
Henry  Erskine  well  sums  up  his  argument  against  the 
verdict — The  libel  says,  1.  That  the  pannels  printed  and 
published  the  pamphlet ;  2.  That  they  did  this  wickedly 
and  feloniously ;  and  3.  That  the  pamphlet  was  seditious, 
and  these  facts  must  be  found.  The  judgment  on  the 
verdict  might  also  be  referred  to  in  support  of  the  view 
I  take  of  this  verdict  as  a  very  important  authority.  But 
I  pass  over  that  as  of  less  direct  application. 

2.  Smith  and  Memmons,  1793.-^Major, — wickedly  and 


74  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  feloniously  publishing  any  seditious  writing,  tending  to 
and  otS.  create  a  spirit  of  disaffection,  and  to  excite  tumult,  &c. 
High  Court.  3.  Skirving. — Major,  sedition — Minor,  Whereas  a  se- 
me. '  ditious  or  inflammatory  writing,  calculated  so  and  so,  was 
Conspiracy  Sent  to  Skirviug  to  be  circulated,  he  did  circulate  the 
&  Sedition.  ^^^^     rpjjjg  pg^^j.  ^f  ^j^g  indictment  was  distinct  and  apart 

from  the  after  charge  as  to  the  Convention. 

Mr  Blair — ^who  alone  conducted  that  prosecution — 
thought  it  necessary  to  state  his  views  on  the  2d  part  of 
that  indictment  at  considerable  length, — the  more  so,  as 
we  all  know,  because,  from  his  absence  at  the  other 
trials  (an  absence  not  peculiar  to  them)  a  very  false  re- 
port had  been  raised  that  he  disapproved  of  the  prosecu- 
tions ;  but,  on  the  first  part  of  the  indictment,  he  simply 
said  he  held  the  crime  to  be  completely  and  well  laid 
in  the  libel. 

4.  Morton,  Anderson  and  Craig — the  major  sets  forth 
only,  '  uttering  seditious  speeches,  tending  to  create,'  &c. 

I  think  the  minor  comes  to  the  very  same  thing,  as  no 
intent  as  to  the  particular  words  set  forth  is  annexed  to 
them,  different  from  the  seditiously  or  wickedly  uttering 
them.  This  was  the  first  case,  I  believe,  in  point  of 
time,  and  an  argument  was  stated,  though  hardly  amount- 
ing to  an  objection.  The  Judges  gave  their  opinions 
seriatim  on  the  indictment.  Lord  Henderland  particu- 
larly gives  his  opinion  on  the  major  I  have  quoted.  I 
think  the  rule  of  law  is  well  stated  by  Lord  Justice- 
Clerk  Braxfield,  vol,  xxiii.  p.  15,  especially  in  his  refe- 
rence to  the  case  of  blasphemy  as  analogous.  He  ob- 
served, '  that  it  was  no  good  defence  to  say,  that  the 
'  words  here  spoken  were  mere  verba  jactantia.  They 
'  were  obviously  of  a  most  wicked  and  seditious  import ; 
'  and  no.  plea  of  rashness,  wantonness,  or  conviviality, 
'  could  be  admitted  as  an  excuse.  His  Lordship  illus- 
'  trated  this  by  referring  to  the  horrid  crime  of  blas- 
'  phenay,  where,  though  the  words  uttered  could  be  no- 
'  thing  else  than  wind,  or  foolish  in  the  extreme,  still  they 
'  were  impious  and  wicked,  and  might,  in  certain  cir- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  75 

cumstances  be  cognisable  and  severely  punishable  by  a     No.  c. 

criminal  court.'  and  others. 


5.  Muir — ^the  major  there  described  the  publications  High  Court, 
as  calculated — as  of  such  and  such  a  tendency — as  tend-     isis. 

ing  to  produce,  &C.  Conspiracy 

In  the  minor  a  specific  intention  is  in  some  cases  dis-  ^ 
tinctly  ascribed  to  the  pannel — in  others  not — according 
to  the  nature  and  import  of  the  words  and  publications. 
A  great  deal  is  said  of  this,  and  some  of  the  more 
noted  cases  at  this  time,  by  persons  who,  I  firmly  believe, 
never  read  the  indictments,  and  confound  the  acts  and 
publications  with  their  opinion  of  the  punishment.  I  re- 
fer to  them  as  unquestionably  relevant  indictments  for 
sedition — whether  parties  might  have  concurred  in  the 
verdict  returned  by  such  men  as  Mr  Homer  or  not. 

6.  Alex.  Leslie. — Major,  sedition ;  as  also  the  wickedly 
and  feloniously  circulating  any  seditious  publication,  or 
any  publication  tending  to  vilify,  &c.  the  established  re- 
ligion. 

iUfmor-— averred  the  wickedly  and  feloniously  circu- 
lating seditious  publications  ;  also  writings  tending  to 
vilify :  the  seditious  publications  are  also  stated  in  an- 
other place  as  tending  to  alienate,  &c.  Then  the  blas- 
phemous work  is  again  described  as  tending,  &c. 

7.  T.  F.  Palmer. — Major,  wickedly  and  feloniously 
writing  any  seditious  or  inflammatory  writing,  calculated, 
&c. ;  also  wickedly  and  feloniously  publishing  any  such 
sedition. 

Minor — described  the  writing  as  of  a  wicked  and  se- 
ditious import.  To  that  indictment  elaborate  objections 
were  stated,  at  extraordinary  length,  by  Mr  Hagart ;  but 
limited  to  this,  viz.,  that  the  writings  set  forth  even  as 
matter  for  the  Court  in  the  first  instance,  not  calculated, 
on  sound  construction,  to  produce  the  effects  ascribed, 
and  were  not  of  the  import  and  tendency  stated,  but  that 
the  scope  and  burden  (as  Mr  Hagart  put  it)  were  diffe- 
rent. In  a  very  long,  zealous,  and  elaborate  argument, 
that  is  the  only  objection  taken. 


76  CASES  BEFORE  THE  HIGH  COURT 

No.  6.        Ml'  M'Conocliie,  first  Lord   Meadowbank,  puts  his 

John  Grant  /■    t_  •   • 

and  Others  answer  OH  the  ground  of  the  import  of  the  writing. 
High  Court.      The  opinion  of  the  Court  assumes  the  import  to  b6 
?848. '    the  matter  for  decision.      Indeed,  if  special  intention 
Conspiracy  had  been  ascribed  to  any  particular  words,  or  had  been 
necessary  in  law,  the  short  answer  would  have  been, — the 
import  of  the  publication  we  need  not  consider,  and  is  im- 
material, since  the  particular  intention  with  which  special 
words  were  written,  must  be  averred  and  is  to  be  proved, 
and  has  not  been  averred  although  essential.  No  such  view 
occurred  to  any  one.     In  that  case,  the  pannel  was  as- 
sisted also  by  Mr  Clerk. 

The  case  went  to  the  Jury. 

I  am  not  sure  that  there  is  to  be  found  any  where,  on 
the  whole,  a  better  practical  exposition  of  the  law  of  se- 
dition than  in  Mr  Clerk's  speech  to  the  Jury  for  Palmer. 
We  have  it  revised  in  the  State  Trials  by  himself,  and  it 
is  a  beautiful  instance  of  that  great  power  of  discrimina- 
tion, and  masterly  precision  of  language  which  he  pos- 
sessed in  so  eminent  a  degree,  along  with  the  highest 
order  of  legal  talent.  In  the  whole  of  that  speech  he 
admits  that  the  import  and  tendency  of  the  writing  is  the 
point  in  sedition,  unless  the  party  has  a  legal  object  in 
view. 

After  explaining  the  general  right  of  the  subject  to 
discuss  such  important  objects  as  reform,  with  fervour 
and  zeal,  he  says — '  He  who  speaks  or  writes  to  raise 
'  discontent  or  disturbance,  or  to  bring  the  Government 
'  into  hatred  or  contempt,  is  seditious,  and  he  whose 
'  speeches  or  writings  have  that  tendency  is  seditious,  un- 
'  less  in  either  case  the  speaker  or  writer  has  a  legal 
'  object  in  view.' 

Then,  when  he  comes,  after  a  long  general  argument 
as  to  the  latitude  belonging  to  the  subjects  of  this  coun- 
try to  comment  on  the  terms  of  the  publication  in  ques- 
tion, his  argument  is  not  whether  such  and  such  effect 
are  intended;  but  very  specially  and  particularly  he 
says — '  Gentlemen, — I  will  not  contend  that  a  writing, 


AND  CIRCUIT  COURTS  OF  JUSTICIAKY.  77 

'  malicious, — seditious  in  itself,  and  calculated  to  raise     No.  b. 

T  •  1  1  1        1       o        ^"^'^  Grant 

'  sedition  among  the  people — can  be  excused  by  the  fact  and  others 

'  that  no  sedition  was  raised.     In  general,  it  is  true  in  High  Court. 

'  criminal  cases,  that  intention  is  not  sufficient  to  crimi-     °usl ' 

'  nate,  unless  the  crime  be  perpetrated.    But,  in  cases  conspiracy 

'  of  sedition,  I  am  disposed  to  admit  that  the  intention 

'  is  carried  into  effect,  and  the  crime  is  committed  by  the 

'  act  of  publishing  the  seditious  writing.     But,  gentle- 

'  men,  what  are  the  circumstances  here  ?     It  is  not 

'  proved  that  the  purposes  of  this  society  went  any  far- 

'  ther  than  a  moderate  and  a  national  reform.     The 

'  hand-bill  complained  of  the  very  grievances  which  are 

'  always  enumerated  by  reformers ;  and  it  was  not  either 

'  intended  or  calculated  to  raise  sedition.     It  is  true, 

'  indeed,  that  every  publication  against  the  measures 

'  of  Government  must  necessarily  raise  discontents  in 

'  the  minds  of  the  people  ;  for  no  such  writing  ever  was 

'  published  with  any  other  intention  than  to  shew  the 

'  people  what  their  true  intent  was,  and  that  it  had  not 

'  been  consulted  by  Government.      Discontent  is  un- 

'  avoidable  where  public  measures  are  wrong  or  thought 

*  to  be  so.     But  discontent  is  very  different  from  sedi- 

'  tion.     The  people  may  be  perfectly  quiet  amidst  the 

'  greatest  discontents.     To  render  a  writing  seditious,  it 

'  must  be  intended  or  calculated  to  urge  the  people  to 

'  actual  violence,  and  how  can  it  be  said  that  the  hand- 

'  bill  is  of  that  description  ?     Where  is  the  excitement 

'  to  illegal  acts  of  any  sort  ?' 

In  the  charge  to  the  jury,  Lord  Abercromby,  in  a 
most  temperate,  lucid,  and  fair  charge,  puts  the  question 
exactly  as  Mr  Clerk  put  it — whether  the  writing  libelled 
on  be  of  a  seditious  tendency. 

8.  Stewart  and  Elder. — Major,  wickedly  and  felo- 
niously writing  and  printing  any  seditious  libel :  Minor 
described  it  as  seditious  ;  also  which  inscriptions  were 
obviously  calculated, 

9.  Alexander  Scott. — Major  sedition,  as  also  wickedly 
and  feloniously  circulating  and  printing  any  writing  of  a 


78  CASES  BEFORE  THE  HIGH  COURT 

Noj6.    seditious  import,  and  tending,  calculated,  &c.     Minor 

and  others,  same. 

High  Court.     Other  cases  of  the  same  sort  mis^ht  be  cited  from  that 

Nov.  25.  T  rr. 

1848.     period,  but  there  are  others  of  a  later  date.     It  is  sum- 
Conspiraey  cieut  to  refer  to  one,  the  most  noted  in  recent  times; 

10.  M'Laren  and  Baird,  1817, — which  attracted  great 
attention.  Major,  sedition.  Minor,  states  that  they 
wickedly  and  feloniously  delivered  seditious  speeches,  cal- 
ctdated,  &c. ;  the  same  is  said  of  the  publication. 

These  pannels  were  very  ably  assisted,  and  I  know 
from  my  friend  Mr  Campbell,  of  counsel  for  M'Laren, 
that  Mr  Clerk,  who  conducted  for  M'Laren,  bent  his 
whole  mind  to  the  case,  as  zealously  as  he  could  have 
done  in  younger  life,  and  directed  anxiously  the  state- 
ment which  Mr  Campbell  made  on  the  indictment  before 
trial.  Mr  Campbell  says  the  passages  will  be  a  matter 
for  sound  construction  for  the  jury.  The  relevancy  was 
not  objected  to.  For  the  other  pannel,  Mr  Jeffrey  ended 
his  explanatory  statement  to  the  Court  with  stating,  after 
a  short  explanation,  that  the  object  of  the  publication 
was  to  get  money ;  '  that  as  to  relevancy,  much  will  de- 
*  pend  on  the  interpretation  to  be  given  to  the  words 
'  libelled  on.'  And  that  indictment  went  to  the  jury  with- 
out any  expression  whatever,  annexing  to  the  particular 
words  any  special  intention,  or  implying  that,  in  addition 
to  being  seditiously  spoken,  the  words  were  intended,  as 
well  as  calculated. 

Intended  was  left  out  in  the  indictment.  The  convic- 
tion was  in  terms  of  the  indictment,  and  a  good  verdict. 
Intended  is  in  this  indictment ;  was  it  necessary  to  the 
charge  ?  I  hold  not.  The  jury  leave  it  out.  Then,  if 
not  necessary  to  the  charge  in  any  form,  how  shall  the 
verdict  fall,  or  be  equivalent  to  one  of  not  guilty  ? 

This  indictment  charges  sedition  in  the  major. 

The  minor  sets  forth  that  Ranken  did  openly  and '  sedi- 
'  tiously,'  at  a  public  meeting  on  Burntsfield  Links  and 
other  occasions,  utter  certain  language,  and  the  same  is 
averred  as  to  Hamilton  ;  and  the  indictment  closes  with 


AND  CIRCUIT  COURTS  OF  JUSTICIARV.  79 

the  sreneral  statement,  that  the  whole  or  part  of  the     No.  e. 

1  o      %  •  1    1  111  ^°^^  Grant 

language  above  set  forth,  was  intended  and  calculated.       and  others, 
Now,  that  the  whole  of  the  averments  in  an  indictment  High  Court. 
need  not  be  proved  and  affirmed  by  the  jury,  if  what  is     \u%. ' 
of  itself  clearly  relevant  is  found,  is  in  the  general  case  conspiracy 
admitted  to  be  dear  law.     That  this   indictment  was  * 
perfectly  relevant  without  the  words  intended,  and  with 
calculated  alone,  I  apprehend  to  be  a  point  fixed  by 
authorities,  and  clear  on  principle.     That  that  which  was 
unnecessary,  need  not  be  found,  is  a  point  also  quite 
clear  in  our  criminal  law  and  practice.     Hence,  in  the 
abstract,  and  in  any  other  case,  this  verdict  is  unim- 
peachable.    But  then,  it  is  said  that  the  omission,  pur- 
posely by  the  jury  of '  intended,'  negatives  the  whole  aver- 
ment of  guilt  in  the  minor,  and  renders  the  verdict  one 
of  not  guilty  in  the  case  of  sedition.     How  that  should 
be,  if  '  intended'  need  not  be  in  the  indictment  at  all,  I 
have  not  been  able  to  comprehend.     But  the  whole 
argument  is  founded  on  a  complete  misapprehension,  both 
of  the  legal  principles  applicable  to  our  indictments,  as 
also  to  the  crime  of  sedition. 

I  have  already  adverted  to  the  misapprehension  of  the 
principles  on  which  our  indictments  are  framed. 

1.  The  proper  averment  of  guilt  in  the  minor  in  this 
charge  of  sedition,  is  in  the  allegation  that  the  pannel 
did  openly  and  '  seditiously/  and  in  presence  of  great 
numbers,  utter  the  language  imputed  to  him ;  the  aver- 
ment which  follows  is  properly  descriptive  of  the  character 
of  the  language  so  seditiously  used.  To  add  intended 
to  calculated  in  that  description  is  really,  when  care- 
fully considered,  an  allegation  quite  misplaced,  as  well  as 
unnecessary  to  complete  the  full  averment  of  guilt.  It 
may  be  true  that  the  exg,ct  effects  which  the  language  is 
calculated  to  produce,  were  also  intended.  But  that  is 
not  the  necessary  or  proper  averment  of  guilt  in  a  case 
of  sedition  in  the  minor.  The  averment  of  guilt  in  the 
minor  is  in  this,  viz.,  that  the  party  did  seditiously  utter 
language  calculated. 


so  CASES  BEFORE  THE  HIGH  COURT 

J  f^G '         ^'  ^^®  second  misapprehension  is  in  assuming  that  this, 
and  Others,  the  proper  averment  of  guilt,  is  not  affirmed  by  the  ver- 
HighCourt.  dict  wheu  the  Jury,  combining,  as  every  verdict  does,  the 
1848. '  major  and  minor,  with  the  latter  of  which  the  jury  have 
Conspiracy  particularly  to  do,  find  the  pannels  guilty  of  sedition,  in 
^  ' '"  ■  so  far  as  that  they  used  language  calculated  to  excite  po- 
pular disaffection  and  resistance  to  lawful  authority. 

3.  But  the  main  misapprehension  is  in  regard  to  the  law 
of  sedition ;  and,  in  my  opinion,  it  is  a  very  great  and 
serious  misapprehension. 

The  crime  of  sedition  consists  in  wilfully,  unlawfully, 
mischievously,  and  in  violation  of  the  party's  allegiance, 
and  in  breach  of  the  peace,  and  to  the  public  danger, 
uttering  language  calculated  to  produce  popular  disaffec- 
tion, disloyalty,  resistance  to  lawful  authority,  or,  in  more 
aggravated  cases,  violence  and  insurrection.  The  party 
must  be  made  out  not  to  be  exercising  his  right  of  free 
discussion  for  legitimate  objects,  but  to  be  purposely, 
mischievously,  without  regard  to  his  allegiance,  and  to 
the  public  danger,  scattering  burning  firebrands,  calcu- 
lated to  stimulate  and  excite  such  effects  as  I  ha^e  men- 
tioned— reckless  of  all  consequences.  As  Mr  Clerk  said 
in  Palmer's  case,  '  He,  whose  speeches  or  writings  have 
'that  tendency,  is  seditious,  unless,  in  either  case,  the 
'  speaker  or  writer  has  a  legal  object  in  view. 

Now,  in  this  case,  I  apprehend  that  the  law  does  not 
look  for  or  require,  besides  this  illegal  spirit,  this  general 
dole  or  legal  malice,  the  additional  and  special  element 
of  the  intention,  or  purpose,  with  reference  to  the  pre- 
cise effects  which  the  words  are  calculated  to  produce. 
If  such  purpose  is  also  proved,  the  case  will  be  one  of 
more  deliberate,  more  dangerous,  and  more  aggravated 
sedition.  But  very  often  the  precise  effects  which  the 
words  are  calculated  to  produce,  are  not  at  all  what 
the  party  intends,  and  still  more,  not  what  he  has 
brought  his  own  mind  up  to,  just  because  they  point  to 
immediate  violence.  The  party  guilty  of  sedition  in 
uttering  such  language  is  often  only  playing  the  part  of  a 


AND  CIRCUIT  COURTS  0?  JUSTICIARY.  81 

field  orator,  hallooed  on  by  shouts  from  an  excited  and     No.  6. 
turbulent  crowd — often  of  the  worst  characters  :  He  has  and  others. 
to  sustain  his  part  as  a  leader ;  has  to  outbid  in  exaggera-  High  Court. 
tion  and  violence  the  man  who  spoke  before  him  ;  has     "sia. ' 
got  so  familiarized  to  violent  and  dangerous  language,  conspiracy 
that  he  does  not  think  how  they  may  affect  others ;  has  *  Sedition. 
to  secure  a  liberty  for  bold  language,  and  often  to  secure 
pay  for  such  achievements :  He  is  aiming,  perhaps,  at 
being   chosen  as  a  delegate ;    thinks,  perhaps,  that  by 
intimidation  he  may  concuss  and  frighten  others  into  an 
exaggerated  notion  of  the  numbers  and  power  of  those 
who  venture  to  utter  such  language  :  He  is  reckless  as 
to  what  he  says ;  thinks  and  cares  little  about  it,  if  it 
answers  the   object  at  the  time ;  but  all  the  while  he 
may  not  desire  or  intend  the  precise  effects  which  his 
words  are  calculated  to  produce — it  may  be  of  instant 
violence.     Yet  of  sedition  he  is  clearly  guilty,  if  these 
reckless  words  are  calculated  to  produce  such  results. 

I  take  what  appeared  in  another  part  of  this  case  as 
a  very  apt  illustration  of  how  little  the  intent  to  produce 
the  actual  effects  which  the  words  are  calculated  to  pro- 
duce, enters  into  the  guilt  of  sedition,  in  point  of  law,  as 
a  necessary  element.  Your  Lordships,  who  sat  with  me, 
will  recollect  that,  in  reference  to  the  part  of  the  case 
charging  conspiracy,  and  the  purpose  of  forming  a  Na- 
tional Guard,  for  effecting  changes  in  the  constitution  by 
force — as  to  which  the  jury  very  correctly  found  the 
charge  not  proved,  but  only  not  proved — we  heard  a 
great  deal  of  the  language  and  proposals  of  a  person, 
whose  warlike  language  (for  it  is  lamentable  to  think  how 
commonly  and  frequently  the  purpose  of  arming  seemed 
to  be  talked  of)  obtained  for  him  the  nickname  of  Briga- 
dier-General. Now,  at  a  public  meeting,  in  a  hall  in 
Edinburgh,  before  600  or  700,  at  which  one  of  thepannels 
was  not  present  at  all,  this  individual — I  am  assuming  the 
facts  for  the  sake  of  illustration,  of  course  not  as  true 
— openly  and  distinctly  purposed  and  exhorted  the  meet- 


82  CASES  BEFORE  THE  HIGH  COURT 

johl°Grant  ^"S  ^^  ^"'"^  ^  national  guard  of  1600  men,  in  companies 
and  Others,  of  400,  two  of  whicli  Were  to  be  armed  as  musketeers, 
High  Court,  and  the  other  two  as  lancemen,  and  enlarged  on  the 

Nov.  25.  "^ 

1848.     necessity  of  chartists  and  all  others  resorting  to  arms ; 
Conspiracy  which  seditious  proposal  was  prefaced,  one  of  the  wit- 

&  Sedition.  ,  ^,  /  ,  .  ,  ^    i      i  x    j 

nesses  who  opposed  it,  stated, '  with  a  great  rhodomontade 
'  of  poetry ;'  and  Mr  Logan,  whose  object  was  to  shew 
that  his  clients  had  always  discountenanced  this  indivi- 
dual, told  us,  as  a  proof  of  the  extravagant  pitch  of 
heroism  to  which  he  worked  himself  up  (though  that  part 
of  the  speech  was  not  in  evidence,)  that  he,  at  last, 
declared  that  he  was  ready,  and  hoped,  to  head  this  body 
against  Her  Majesty's  troops,  and  that  he  had  no  doubt 
he  would  rout  all  whom  he  might  encounter,  and  out- 
general the  Duke  of  Wellington  himself.  Now,  if  an 
indictment  had  been  preferred  against  this  party,  who 
was  skid  to  have  left  the  country,  charging  sedition,  and, 
in  the  minor,  setting  forth  that  he  openly  and  seditiously, 
at  a  public  meeting,  made  this  proposal,  and  used  such 
language,  and  had  further  averred  that  the  language  was 
intended  and  calculated  to  stir  up  the  people  to  imme- 
diate insurrection  under  him,  and  to  array  themselves 
under  him  as  a  leader  against  Her  Majesty's  troops ;  and 
if  such  proposal  and  language  had  been  proved,  I  suppose 
no  Jury  of  reasonable  men  (unless  the  defence  of  insanity 
had  been  established,)  could  have  hesitated  to  say  that 
such  a  party  was  guilty  of  sedition  in  using  language  of 
such  import  and  tendency.  But  it  would  have  been  very 
difficult,  probably,  to  satisfy  them,  at  least  it  would  have 
been  very  difficult  to  satisfy  me,  that  this  most  redoubt- 
able personage  did  really  intend,  or  desire,  to  lead  any 
attack  against  Her  Majesty's  troops,  or  to  encounter,  I 
do  not  say,  the  Duke  of  Wellington,  but  even  to  stand 
the  steady  fire  of  a  Serjeant's  party  of  the  very  oldest  pen- 
sioners on  the  list.  That  would  have  been  about  the  last 
thing  that  I  should  have  believed,  that  he  had  any  intention 
of  doing.  Yet,  of  sedition,  such  a  proposal,  and  language 
so  calculated,  would  justly  convict  a  party.     This  is  just 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  83 

the  distinction  applicable  to  this  case  and  verdict,  ^.nd  a    Noj_b^^^ 

practical  illustration,  which  shews  the  principle  of  the  and  others. 

law,  and  the  principle  of  our  indictments.    The  exact  High  Court. 

'  r         r  Nov.  25. 

effect  which  the  words  are  calculated  to  produce,  is  one     i848. 

thing  that  may  or  may  not  be  intended.    The  orators,  on  Conspiracy 

such  occasions,  often  know  very  little,  and  think  very 

little,  of  the  effects  which  their  words  are  calculated  to 

produce.     But  the  wilfully  and  rciischievously  using  such 

language  against  their  allegiance,  and  against  the  peace 

of  the  country,  and  the  rule  of  law  and  order,  makes 

them  guilty  of  sedition. 

This  wilful,  disloyal,  and  mischievous  spirit  in  the  use 
of  such  language,  whereby  popular  disaffection  and  re- 
sistance to  lawful  authority  is  directly  encouraged  and 
excited,  makes  the  crime  of  sedition,  even  although  the 
language  used  may  not  have  been  intended  to  produce 
the  exact  effects  which  it  is  calculated  to  do. 

Besides  the  general,  unlawful,  wilful,  and  disloyal 
spirit,  which  is  the  illegal  purpose  charged  by  the  word 
'  seditiously/,'  to  require  that  the  precise  intention  to  pro- 
duce the  exact  effects  which  the  words  are  calculated  to  pro- 
duce, sbould  be  proved  over  and  above  a  finding  that  the 
party  was  seditious  in  using  the  language,  would,  in  truth, 
surround  much  most  mischievous  and  dangerous  sedition 
with  complete  impunity ;  for  1.  such  additional  intention 
it  may  be  very  diflBcult  to  prove ;  2.  The  whole  appear- 
ance, and  manner,  and  conduct  of  the  party,  of  his  asso- 
ciates, and  of  the  meeting,  may  really  satisfy  all  that  the 
exact  effects  which  his  words  were  calculated  to  produce, 
were  not  really  and  solely  designed  by  him.  The  man 
may  have  been  too  excited  to  have  any  such  deliberate 
cool  design  as  instant  insurrection  before  him,  although 
his  words  were  directly  calculated  to  produce  that  result. 
Nay,  one  might  be  quite  satisfied  of  the  reverse, — that  his 
object  was  to  keep  up  great  and  alarming  discontent  and 
agitation  for  his  ovm  base  purposes,  to  secure  weekly  or 
yearly  contributions,  as  a  reward  for  his  trade;  and  that 
he  well  knew  that  any  actual  outbreak  would  at  once 


84  CASES  BEFORE  THE  HIGH  COURT 

Jota  Grant  ^^^^  *°  *^^  extermination  of  his  calling,  and  that  such  re- 
and  Others,  gultg  "were  what  he  most  dreaded,  though  he  was  using 
HighCo^urt.  language  well  calculated  to  produce  these  effects,  unless 
1848.  he  at  the  same  time  cunningly  kept  under,  by  his  iniluence. 
Conspiracy  the  Spirit  he  was  tryins:  to  rouse.     But  though  a  Jury 

&  Sedition.    ,     „  ,  ■'      °  .        ,  .  .    .1     j. 

shall  be  satisfied  upon  that  pomt,  is  the  crime  not  that 
of  sedition,  if  the  language  is  calculated  to  produce  the 
results,  and  if  the  party  is  acting  unlawfully,  contrary  to 
his  allegiance,  and  to  the  peace  of  the  realm,  in  using 
such  language  in  the  circumstances,  and  on  the  occasion 
in  question,  having  no  justification  in  object  or  occasion  ? 

Hence,  then,  the  proper  guilt  of  sedition  (of  that  kind, 
I  mean,  which  is  here  prosecuted,)  consists  in  the  unlaw- 
ful and  disloyal  spirit  in  which,  contrary  to  the  subject's 
allegiance,  and  in  violation  of  the  peace  and  order  of 
society,  and  of  the  rule  of  law,  language  or  publications 
are  used  and  circulated,  calculated  to  produce,  as  here 
found,  '  popular  disaffection  and  resistance  to  lawful 
'  authority.'  And  it  is  a  misconception  of  the  law  to 
suppose  that  the  effects  which  the  language  is  so  calcu- 
lated to  produce  must  further  be  specifically  intended, 
so  that  the  Jury  must  find  that  the  words  were  intended 
as  well  as  calculated  to  produce  these  results.  If  such 
had  been  the  law,  every  conviction  on  an  indictment  not 
containing  that  additional  averment  in  the  minor,  has 
been  a  bad  verdict.  But  I  hold  the  law  to  be  fixed  by 
the  cases  in  point  of  principle  and  practice. 

If  the  view  of  the  law  I  have  now  stated  meets  with 
the  concurrence  of  the  Court,  then,  most  clearly,  the  ob- 
jection to  this  verdict  wholly  fails. 

I  have  carefully  reviewed  the  authorities,  and  I  am 
satisfied  that  this  view  is  the  sound  result  to  be  derived 
from  them  all. 

It  is  part  of  the  very  misconception  I  have  adverted  to, 
to  take  the  general  passages  descriptive  of  sedition,  and  in 
the  words  therein  employed,  relative  to  the  unlawful 
purpose  and  spirit  of  the  party,  necessary  for  the  crime 
of  sedition,  to  be  applicable  to  the  construction  of  an  in- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  85 

diotment  framed  like  the  present,  and  to  the  particular  ^  No- 6- 

'■  .  *  John  Grant 

and  unnecessary  averment  contained  in  the  present,  over  and  others. 
and  above  the  averment  that  the  language  was  openly  and  High  court, 
seditiously  spoken,  viz.  that  the  same  was  intended,  as     lah. 
well  as  calculated,  to  produce  such  and  such  results.     I  Conspiracy 
do  not  so  understand  the  passages  in  Hume  at  all.     I  do      '"•>'"'"• 
not  think  they  have  the  least  application  to  the  very 
special  question  as  to  this  particular  and  specific  aver- 
ment, that  the  words  were  intended  to  produce  the  re- 
sults mentioned. 

At  the  same  time,  I  am  not  prepared  to  adopt  the 
general  description  of  Hume  as  to  sedition,  as  of  perfect 
accuracy  or  precision,  even  as  a  general  exposition  of  the 
law.  And  I  cannot  state,  consistently,  the  grounds  of 
my  opinion,  without  meeting  directly  the  passage  founded 
on.  I  should  say  that  his  doctrine  is  too  unqualified  and 
too  abstract  on  both  sides,  that  it  restricts  too  much,  in 
words  at  least,  the  subject's  right  of  discussion  and  speech, 
and  in  what  is  to  be  proved,  requires  more  to  be  esta- 
blished on  the  part  of  the  prosecution  than  the  nature  of 
the  offence,  the  general  principles  of  the  law,  and  the 
peace  and  welfare  of  society,  prescribe  as  essential  elements 
of  the  case.  He  seems  to  put  the  crime  of  murder  and 
sedition  on  the  same  footing ;  in  that  I  differ ;  and  he  does 
not  seem  to  me  to  draw  the  distinction  fully  between 
sedition  and  those  treasons  in  which  a  special  intent  is  the 
offence.  Indeed  some  of  his  expressions  seem  more  ap- 
plicable to  such  treasons  than  to  sedition. 

In  his  chapter  on  Sedition,  Hume  refers  back  to  the 
part  of  his  work  on  Leasing-making,  for  his  explanation 
of  the  '  general  notion  of  the  offence  of  sedition,'  as  he 
terms  it,  that  he  need  not  further  describe  it ;  and  says, 
p.  352  : — '  It  is  further  to  be  observed  concerning  lease- 
'  making,  that  it  always  has  relation  to  the  King,  or  (if 
'  that  is  not  abolished  by  the  long  disuse)  to  some  emi- 
'  nent  individual  connected  with  the  Court,  and  can  only 
'  be  committed  by  means  of  false  speeches,  or  reproach- 
'  ful  and  contemptuous  words  thrown  out  against  him, 


86  CASES  BEFORE  THE  HIGH  COtJRT 

No.  e.     *  But  sedition  is  a  crime  of  a  far  wider  and  a  more  various 

and  Others.  *  description,  as  well  as  of  a  deeper  character,  and  may 

High  Court. '  equally  be  committed  in  relation  to  any  of  the  other 

1848. '    '  parts  of  our  frame  of  government,  or  to  any  class  or 

Conspiracy  '  Order  of  our  society,  and  though  no  special  calumny  is 

&  Sedition. .  ejaculated  against  the  King  or  any  other  individual, — 

'  as  by  forming  combinations,  taking  resolutions,  spread- 

'  ing  doctrines  and  opinions,  or,  in  general,  pursuing  any 

'  such  course  of  measures  and  actions  as  tends  directly  to 

'  the  resistance  of  the  legislature  or  established  govern- 

'  ment,  or  to  the  new  modelling  of  the  state  without  the 

'  authority  of  law.    No  invective,  therefore,  how  violent 

'  soever,  against  monarchy  in  general — ^no  abuse,  the  most 

'  outrageous,  of  the  British  Constitution — no  proceedings, 

'  though  tending  ever  so  plainly  to  abolish  that  venerable 

'  system,  and  set  up  a  new  form  of  government   in  its 

'  room, — would  justify  the  charge  of  leasemsiking.     Be- 

'  cause,  though  involving  the  state  and  office  of  the  King, 

*  as  a  part  of  the  constitution,  such  projects  are  levelled 

'  against  the   whole  system,  and  are  not  moved  out  of 

'  personal  grudge  to  the  prince  upon  the  throne,  but 

'  spring  from  a  deeper  and  more  malignant  principle,  and 

'  employ  also  more  direct  means  and  more  extensive, 

'  than  the  mere  slander  of  the  character  and  conduct  of 

'  the  King.     Thus  sedition  is  a  crime  against  the  state, 

'  and  holds  the  next  place  after  treason,  to  which  it  is 

'  nearly  allied,  and  which  it  very  often,  but  by  a  short 

'  interval,  precede.     The  other  is  a  personal  offence  or 

'  verbal  injury  offered  to  the  King,  and  is  considered  by 

'  the   law  in  so  much  a  more  serious  light  than  other 

'  wrongs  of  this  class,  partly  on  account  of  the  peculiar 

'  regard  it  has  to  his  peace  and  tranquillity,  and  partly 

'  by  reason  of  the  possible  evil  influence  of  such  an  ex- 

'  ample  on  the  aifections  and  dispositions  of  his  subjects.' 

This  explanation,  to  which  Hume  himself  refers,  as 

his  proper  description  of  the  offence,  certainly  givies  no 

countenance  to  the  argument  against  this  verdict.     And 

it  was  an  occasion,  in  which,  as  he  himself  says,  great 


AND  CIRCUIT  COUllTS  OF  JUSTICIARY.  §7 

discrimination  and  precision  was  necessary,  viz.  in  draw-     No.  b. 

.,,...,  ,        .  ,  .  ,      John  Grant 

ing  the  distinction  between  leasmg-making  against  the  and  others. 
sovereign,  and  sedition.     Whether,  after  the  Union,  any  High  Court, 
such  distinction  can  be  recognised,  or  whether  the  in-     i848. " 
stances  he  gives  of  the  former  are  not  proper  cases  of  Conspiracy 
seditious  libels,  I  need  not  consider.    The  remark  as  to 
sedition  being  nearly  allied  to  treason,  and  which  it  may 
often,  but  by  a  very  short  interval,  precede,  may  be  correct 
to  the  limited  extent,  that  parties  guilty  of  the  one  may  be 
led  into  the  other.     But  if  it  imports,  as  it  seems  to  do, 
as  matter  of  doctrine,  that  the  two  crimes  are  nearly 
allied,  in  the  elements,  which  are  essential  to  the  several 
crimes,  I  dissent  wholly  from  the  opinion.     Such  con- 
structive treasons  as  were  attempted  to  be  made  out  in 
the  case  of  Hardy  and  Tooke,  were  indeed  allied  to  sedi- 
tion, or  rather  were  nothing  but  sedition.     But  the  dis- 
tinction between  the  crimes  is  as  broad  as  law  and  reason 
can  make  out  any  line  of  difference. 

I  notice  this  remark,  because  I  trace  the  influence  of 
this  '  notion,'  that  sedition  is  nearly  allied  to  treason, 
on  the  expressions  and  opinions  which  occur  in  the  sub- 
sequent part  of  the  work.  And  this  tendency  to  view 
the  two  as  so  closely  allied,  might  arise  from  the  fact, 
that  the  same  facts  had  been  founded  on  in  the  prosecu- 
tions in  Scotland  for  sedition,  which  were  so  strenuously 
urged  in  England,  for  the  conviction  of  Hardy  and  Tooke 
of  treason.  The  error  is,  however,  a  very  grave  one ;  it 
tends  to  make  the  law  of  treason  too  easy,  the  proof  of  se- 
dition more  difficult  than  law  or  the  reason  of  the  thing 
requires.  There  is  no  alliance  in  the  law  between  them, 
to  use  Baron  Hiime's  expression,  or  rather,  to  use  a  more 
correct  legal  expression,  there  is  really  no  identity  in  the 
essential  elements  of  the  two  offences.  1.  The  law  of 
treason  is  wholly  statutory ;  of  sedition  it  is  by  common 
law,  both  in  England  and  Scotland.  2.  In  treason,  un- 
less when  war  is  actually  levied,  a  certain  specific  intent 
is  of  the  very  essence  of  the  crime,  and  unless  that  speci- 
fic intent  is. proved,  the  general  purpose  of  commotion, 


88  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    confusion,  and  a  sreneral  disloyal  mischievous  spirit,  lead- 

John  Grant  °  •'  i_         tt  j.v 

and  others,  ing  to  most  daugerous  evils,  is  not  enough.     Hence  trie 

High  Court,  specific  intent  of  the  mind  is,  in  most  cases,  of  the  essence 

1848.  ■  of  the  crime  of  treason.     I  hold  this  to  be  the  turning 

Conspiracy  poiut  of  the  case,  and  in  sedition  there  is  no  such  special 

&  Sedition.        j  i-      .,     j  i 

and  limited  law. 

Baron  Hume  does,  however,  while  he  refers  back  to 
his  former  description  of  sedition,  as  his  explanation  of 
the  general  notion  of  the  crime,  go  on  in  the  chapter  on 
Sedition  with  a  general  sentence,  not  very  consistent,  I 
admit,  in  expression,  or,  perhaps,  purport,  with  the 
passages  to  which  he  thus  refers  as  his  proper  text  on 
the  subject :  He  says,  p.  553 : — '  I  had  formerly,  in  draw- 
'  ing  the  line  between  sedition  and  leasemaking,  a  pro- 
'  per  occasion  to  explain  the  general  notion  of  this 
'  offence.  And  I  shall  not  now  attempt  any  further  to 
'  describe  it  (being  of  so  various  and  comprehensive  a 
'  nature)  than  by  saying,  that  it  reaches  all  those  prac- 
'  tices,  whether  by  deed,  word,  or  writing,  or  of  whatsoever 
'  kind,  which  are  suited  and  intended  to  disturb  the 
'  tranquillity  of  the  state — for  the  purpose  of  producing 
'  public  trouble  or  commotion,  and  moving  his  Majesty's 
'  subjects  to  the  dislike,  resistance,  or  subversion  of  the 
'  established  government  and  laws,  or  settled  frame  and 
'  order  of  things.' 

Now,  if  this  is  to  be  taken  as  a  practical  rule,  accord- 
ing to  which  indictments  are  to  be  framed,  and  juries  to 
be  directed,  and  as  referring  to  anything  beyond  the 
general  malice  and  illegal  purpose,  which  is  involved  in 
any  man  uttering  seditious  words  without  a  legal  excuse, 
I  must  very  distinctly  say  that  I  cannot  acquiesce  in  that 
as  a  correct  definition  of  the  law,  or  leave  the  protection 
of  society  to  rest  on  the  requisites  there  stated  as  neces- 
sary to  constitute  sedition — if  the  learned  author  meant 
more  than  what  is  stated  in  Starkie,  in  a  passage  I  shall 
afterwards  refer  to,  as  to  legal  and  technical  malice  or 
purpose. 
V    But  is  the  author  consistent  as  an  exponent  of  consti- 


AND  CIRCUIT  COU&TS  OF  JUSTICIARY.  89 

tutional  law,  when  in  the  next  sentence  he  says : — *  Under    No.  6. 

.      .  1  1   /.  ,1  Jol""  Grant 

'  this  description  would  fall  a  work,  such  as  it  has  been  and  others. 


'  reserved  for  the  wickedness  of  the  present  age  to  pro-  High  Court. 

'  duce,  which  should  teach  that  all  monarchy  and  heredi-     1848. ' 

'  tary  rank,  or  all  clerical  dignities  and  establishments  of  conspiracy 

'  religion,  are  an  abuse  and  usurpation,  contrary  to  reason  *  ^'^'*"'"- 

'  and  justice;  and  unfit  to  be  any  longer  suffered.     Or, 

•  though  the  piece  should  not  set  out  on  so  broad  a  prin- 

'  ciple  as  this ;  if  it  argue,  like  many  compositions  which 

'  have  lately  been  offered  to  the  public,  that  the  power 

'  of  the  King  is  overgrown,  and  ought  at  any  hazard  to  be 

'  retrenched ;  or  that  the  Commons  are  a  mere  nominal 

'  and  pretended  representation  of  the  people,  and  entitled 

'  to  no  manner  of  regard  ;  or  that  the  whole  state  is  fall 

'  of  corruption  ;   and  that  the  people  ought  to  take  the 

'  office  of  reforming  it  on  themselves.     All  exhortations 

'  of  this  kind,  whether  any  commotion  follow  on  them  or 

'  not  (for  if  any  do  follow,  it  will  not  depend  on  the 

'  degree,  fashion,  and  immediate  occasion  of  that  disturb- 

'  ance,  whether  it  is  not  treason  in  those  who  partake  of 

'  it),  are  undoubted  acts  of  sedition ;  being  calculated  and 

'  employed  for  the  direct  purpose  of  loosening  the  hold 

'  which  the  Government  has  of  the  opinions  and  affec- 

'  tions  of  the  people,  and  thus  preparing  them  for  acts  of 

'  resistance  or  aggression.' 

On  such  publications  I  should  say  that  the  question 
for  the  jury  is  practically  very  different,— are  they  really 
abstract  discussions,  or  are  they  calculated  to  alienate 
the  people  of  this  country  from  their  allegiance,  and 
to  produce  insurrection  here,  as  a  result  clearly  following 
from  the  way  the  questions  are  treated?  If  so,  then, 
whether  intended  or  not,  it  is  enough  that  they  are  so 
calculated — and  so  not  very  consistently  the  author 
holds :  for  he  even  includes  within  the  crime  of  sedition, 
treatises,  although  only  general,  and  only  indirectly  cal- 
culated to  lead  to  such  ends. 

Now  I  require  less  than  his  general  paragraph  here 
requires,  and  much  more  to  make  out  sedition,  than  his 


90  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    illustration  states  to  be  necessary.     Every  other  illustra- 

John  Grant  ^  '  . 

and  Others  tion  and  case  he  gives,  is  stated  in  terms  directly  mcon- 
High  Court,  sistent  with  the  general  passage  on  p.  553,  if  it  is  to  be 

1848. '   construed  in  the  way  the  pannels  contend  for. 
Conspiracy      E^  0. — Speakinff  of  the  Scottish  statutes  which  made 

&  Sedition.  ^  „        ,..  ,  .   ,  ,     ,  , 

some  acts  of  sedition  treasons,  which  were  repealed  by 
the  7th  Anne,  c.  21,  and  the  words  of  all  of  which  are 
against  the  strain  of  that  passage  on  p.  553.     He  says, 
p.  555 : — '  Now,  each  of  these  enactments,  in  its  order, 
'  is  an  acknowledgment  and  a  confirmation  of  the  doc- 
'  trine  of  the  common  law ;  proceeding,  as  they  all  do,  on 
'  the  notion  of  the  wickedness  of  all  such  practices  as 
'  tend  to  impugn  the  principles,  and  shake  the  security  of 
'  the  established  government,  or  to  draw  from  it  the  re- 
'  verence  and  aifections  of  the  people ;  and  raising  such 
'  offences  from  their  natural  rank  of  sedition  to  that  of 
'  treason,  by  reason  of  the  exigency  of  the  times.     Being 
'  now  again  lowered  from  that  degree  by  the  statute 
'  7th  Anne  c.  21,  which  abolishes  the  peculiar  treasons  of 
'  the  law  of  Scotland,  these,  and  all  other  instances  of 
'  transgression  in  the  like  sort,  as  mala  in  se,  and  evils, 
'  too,  of  a  very  high  order,  retain,  of  course,  their  proper 
'  place  and  quality  as  acts  of  sedition  at  common  law ; 
'  whereby  the  offenders  are  justly  exposed  to  the  highest 
'  arbitrary  punishment.     On  these  grounds,  many  con vic- 
'  tions  have  of  late  years  been  obtained.'   And  in  a  note, 
the  case  of  M'Laren  and  Baird,  among  others,  is  quoted 
as  an  illustration  of  '  these  grounds' 

Again — in  distinguishing  between  a  publication  excit- 
ing to  riot,  and  one  seditious,  he  says,  p.  558 : — '  But  if 
'  any  one  print  and  publish  a  discourse,  wherein  he  de- 
'  scribes  the  Legislature  as  corrupt  and  incompetent  to 
'  its  functions,  and  advises  to  hold  a  convention  of  the 
'  people,  who  shall  reform  the  government  after  their  own 
'  fancy,  or  on  a  new  and  more  popular  system,  proposed 
'  in  this  discourse — then  is  the  author  guilty  oj  real  se- 
'  dition ;  for  he  has  taken  a  most  matured  step  or  mea- 
•  sme  towards  disturbing  the  tranquillity  of  the  State.' 


AND  CmCliIT  COURTS  OF  JUSTICIARY.  91 

But  that  same  page  illustrates  how  much  his  views    No.  6. 
were  influenced  by  the  notion  that  the  law  of  sedition  and  others. 
and  of  treason  were  nearly  allied  in  principle ;  for  he  HighCoart. 
says,  p.  558 : — '  The  crime  of  sedition  lies,  therefore,  in     isis,  ' 
'  the    stirring    of  such  humours  as  naturally  tend  to  conspiracy 
'  change  and  commotion  in  the  state.     So  near,  indeed, 
'  is  the  alliance  between  sedition  and  treason;,  that,  if,  in- 
'  stead  of  sowing  the  seeds  of  a  hostile  disposition  to  the 
'  government,  or  preparing  such  materials  as  in  time  may 

•  kindle  into  a  flame,  the  offender  shall  seek  the  same  ob- 
'  ject  more  immediately,  by  a  direct  and  definite  exhor- 
'  tation  to  the  people  to  rise  at  that  particular  season,  as 
'  advantageous  for  gaining  these  ends ;  this  measure,  like 
'  a  consultation  to  levy  war,  seems  to  be  nothing  less 
'  than  an  act  of  compassing  the  death  of  the  King ;  being 
'  a  decided  and  a  material  step  towards  the  doing  of  that, 

•  which  cannot  be  done  without  the  plain  danger  of  the 
'  Sovereign's  life.' 

Now,  on  this  passage  I  must  observe,  that  no  two 
offences  seem  to  be  more  directly  conttasted  in  the 
elements  necessary  to  constitute  guilt,  than  sedition  and 
treason,  here  said  to  be  allied — I  should  say,  even  here 
contrasted — the  one  consisting  in  the  tendency  to  pro- 
duce general  disaffection,  which  may  never  lead  to 
actual  outbreak ;  the  other,  in  the  direct  object  or  intent 
of  immediate  insurrection.  The  former  may  be  far  more 
mischievous ;  for  open  treason  is  easily  dealt  with-— is 
easily  put  down — often  puts  itself  down,  and  generally 
expires  and  burns  out  in  the  act  of  kindling  it.  But  in 
the  latter  there  is  direct,  immediate  design ;  in  the 
former,  the  effect  which  the  act  is  calculated  to  produce, 
is  what  is  'looked  to,  and  for  that  the  party  is  justly 
amenable  if  he  has  no  legal  object — for  the  effect  is  most 
dangerous,  and  the  speech  calculated  to  produce  that 
effect,  is,  as  Mr  Clerk  says,  seditious.  The  distinction 
between  sedition  and  treason  is  then  as  broad  as  the  ne- 
cessity in  the  latter  offence  of  positive  design  of  an  im-- 
mediate  insurrection  can  mark  any  such  difference. 


92  CASES  BEFORE  THE  HIGH  COURT 

Jota  Grant     ^*  '^  ^^^  agreeable,  nor  is  it  often  necessary,  to  make 
and  Others,  these  Comments  on  passages  of  any  institutional  writer, 
HighCouit.  especially  of  one  whose  authority  is  so  great,  and  whose 
1848.     services  to  the  law  are  so  incomparably  beyond  that  of 
Conspiracy  any  Writer  on  any  branch  of  the  Law  of  Scotland,  except 
Lord  Stair.     But  when  we  are  required  to  lay  down  the 
public  law  of  the  realm  on  matters  so  important  to  the 
peace  and  good  order  of  society,  and  in  reference  to  the 
rules  which  must  restrain  within  the  duty  of  allegiance, 
the  right  of  free  speech  and  of  constitutional  agitation  of 
all  questions  in  which  any  classes  of  the  subjects  are  in- 
terested, we  are  bound  very  carefully  to  consider  the 
authority  quoted  to  us,  and  not  to  surrender  our  superior 
and  higher  province  of  Judges  to  the  opinions  of  any 
private  author,  however  eminent. 

If  the  passage  in  Hume,  founded  on  by  the  pannels, 
really  bears  the  construction  they  put  on  it,  or  rather,  I 
should  say,  is  applicable  practically  in  such  questions  as 
the  present  technical  point,  then  I  am  constrained,  but 
without  any  hesitation  whatever,  to  deny  that  it  is  an 
accurate  exposition  of  law. 

I  shall  not  pursue  the  subject  further.  I  will  only  ob- 
serve, in  conclusion,  on  this  subject — that  when  Hume 
puts  murder  and  sedition  as  crimes  analogous  in  prin- 
ciple, I  think  he  brings  out  very  prominently  the  error 
which  pervades  the  general  passage  on  sedition  founded 
on  by  the  pannels.  So  far  from  holding  that  any 
such  analogy  exists,  so  as  to  restrain  within  correspond- 
ing limits  the  two  offences,  I  desire  to  say  decidedly, 
that  I  should  hold  the  crime  of  sedition  in  itsf  analogy 
or  corresponding  principle  (if  such  is  at  all  a  safe  prin- 
ciple of  judgment),  to  answer  to  the  analogy  of  all 
charges  of  culpable  homicide,  of  more  or  less  aggravated 
character,  as  well  as  to,  the  more  direct  intent  which  is 
in  cases  of  murder,  and  may  be  also  in  sedition. 

A  party  is  legally  answerable  for  the  death  of  another, 
caused  by  his  unlawful  actj,  calculated  to  produce  such 
results,  although  he  may  not  have  intended  any  such 


AND  CIRCUIT  C0UKT8  OF  JUSTICIARY.  93 

catastrophe,  if  he  acted  recklessly,  and  without  regard  to     N"-  6. 

,.  /.      1  -cr        1      .  .        „  .,  -John  Grant 

the  safety  or  others.     Yet  he  is  not  in  all  cases  guilty  of  and  others. 
murder,  hut  of  culpahle  homicide.  High  Court. 

And  this  is  the  corresponding  case  in  analogy  to  sedi-  uh. ' 
tion,  if  such  analogies  are  not  most  unsafe  grounds  for  Conspiracy 
legal  reasoning.  In  sedition,  the  effect  of  resistance  to  law- 
ful authority,  as  an  actual  result  to  follow  from  the  words 
used,  may  not  have  been  intended  by  the  party ;  but  if 
the  language  is  calculated  to  produce  that  result,  is  sedi- 
tiously uttered,  contrary  to  the  subject's  allegiance,  and 
to  the  danger  of  the  peace  of  the  realm,  I  hold,  without 
doubt,  that  the  crime  of  sedition  is  completed. 

Still  the  authority  of  Hume  cannot  be  used  against 
this  verdict,  except  by  mistaking  and  confounding  the 
question  as  to  the  general  doctrine  with  the  application 
of  the  doctrine  to  our  indictments. 

I  think  the  law  is  more  corectly  stated  by  Mr  Clerk, 
in  the  defence  for  Palmer,  which  I  have  already  adverted 
to. 

Neither  do  I  think  a  correct  use  has  been  made  of  one 
passage,  or  rather  of  one  word  in  a  passage,  in  the  charge 
of  my  venerable,  predecessor  to  the  Jury,  in  the  case  of 
M'Laren  and  Baird.  In  the  first  place,  on  turning  to 
the  original  edition  of  that  report,  from  which  the  copy 
in  the  state  trials  is  printed,  I  do  not  find  the  least  trace 
that  that  charge  was  afterwards  revised  by  his  Lordship. 
On  the  contrary,  in  the  preface,  Mr  Dow,  who  certainly 
had  not  attained  to  the  accuracy  of  modern  reporters, 
not  only  does  not  state  any  such  authority  and  sanction, 
but  apblogizes  for  the  great  difiiculty  of  preparing  a 
correct  report.  And  the  report  of  the  charge  is  intro- 
duced in  the  following  somewhat  apologetical  manner, — 
'  The  Lord  Justice-Clerk  addressed  the  Jury  in  the  fol- 
'  lowing  manner,' different  from  the  reports  of  the  speeches 
of  counsel,  and  certainly  implying  that  it  is  but  an  im- 
perfect report.  The  Lord  Justice-General  informs  me 
that  he  has  not  the  slightest  recollection  of  having  revised 
his  speech ;  that  he  is  sure  Mr  Dow  never  applied  to  him 


94  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  for  any  such  purpose,  in  any  case  at  all,  and,  therfefore, 
a^d  othera.  that  the  verbal  accuracy  of  that  report  of  his  charge 
High  Court,  ought  not  to  be  relied  on  as  any  expression  of  any  advised 

Nov.  25.  .    .  »,. 

1848.     opinion  01  bis. 
Conspiracy      Then,  again,  Mr  Jeffrey's  argument  as  to  intention,  on 
&  Sedition,  ^jj.^jj  jjg  ^^^^^  ^^j.  ^  direction,  wholly  related  to  the 

general  unlawful  purpose  which  the  words  wickedly  and 
felmiously  in  that  indictment  implied,  or  which  '  seditious 
'  ly'  implies  in  this,  and  did  not  relate  to  the  intent  to  pro- 
duce the  exact  results  which  the  language  was  calculated 
to  produce.  This,  I  think  plain,  on  reading  his  speech, 
which  looks  as  if  it  had  been  corrected.  It  is  to  that  general 
doctrine,  in  the  law  of  sedition,  that  a  part  of  the  charge  is 
directed.  But,  I  own,  I  can  the  less  rely  on  the  verbal 
accuracy  of  that  report,  for  criminal  tendency  and  criminal 
intention  are  used  as  exactly  equivalent  expressions  in  the 
sentence  in  question,  and,  therefore,  in  this  argument,  that 
report  really  cannot  give  us  correctly  what  was  stated,  or 
clearly  would  be  an  authority  against  the  pannel's  argu- 
ment. 

As  I  read  the  charge,  I  do  not  think  it  had  any  refer- 
ence to  the  special  point  here  raised,  even  indirectly. 

Looking  to  all  other  practical  expositions  of  the  law,  I 
find  the  law  stated  exactly  according  to  my  apprehension 
of  it.  I  say  practical  expositions,  for  I  value  a  direction  to 
a  Jury,  by  Judges  of  authority,  intended  to  guide  them,  or 
the  collection  of  the  law  therefrom  deducible  in  works 
having  direct  reference  to  the  way  a  Jury  is  to  be  directed, 
as  far  more  useiiil  than  mere  general  definitions  of  the 
crime  in  the  abstract. 

I  concur  entirely  in  the  way  the  law  is  stated  for 
practical  objects,  in  Starkie  on  Libel,  in  the  Criminal  Di- 
vision of  his  book,  2,  129,  130 ;  Blasphemy,  140,  141, 
147,  151-2  ;  2  Starkie,  175:  By  Lord  Ellenborough,  at 
p.  177 ;  again  at  182-3 — which  very  important — as  to  the 
distinction  between  the  unlawful  purpose  and  the  sort  of 
intent  which  in  this  indictment  is  superadded  very  erro- 
neously and  superfluously,  as  to  the  special  results  which 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  95 

the  words  are  calculated  to  produce.     So  Lord  Holt  put  ^  ^°-J- 

'■  ^        John  Grant 

the  matter  in  a  case  of  great  note,  188."    See  also  Lord  and  others. 
Ellenborouffh,  193;  affain  p.  207  and  216.     On   this  High  Court. 

^       .  °  ,  ,  .  , ,  Nov.  25. 

1   observe,  that  there  is   nodistmction  in  principle  as     i848. 


to  the  offence  of  sedition,  whether  it  is  committed  by  Conspiracy 
language  or  by  publications — very  great  difference,  in- 
deed, as  to  the  sufficiency  of  the  proof,  as  to  the  allow- 
ance to  be  made  for  the  inexperience  and  temperament 
of  the  speaker — the  extent  of  the  mischief,  and  such  like 
considerations,  but  none  as  to  what  constitutes  the  of- 
fence, 217. 

As  to  intention,  again,  at  240,  244,  258,  the  passages 
are  most  material,  and  directly  applicable  to  this  case. 
'  It  is,  however,  important  to  observe,  in  respect  of  this 
'  class  of  cases,  where  the  intention  of  the  publisher,  is 
'  the  test  of  civil  or  of  penal  liability,  that  with  a  view  to 
'  exemption  from  criminal  as  well  as  civil  responsibility, 
'  the  mere  abstract  intention  of  the  party  cannot  protect 
'  him  in  the  absence  of  facts,  which  constitute  an  occa- 

*  sion  recognised  by  the  law.  The  law  allows  no  man 
'  to  defend  himself  by  saying,  '  I  did  an  act,  in  itself  in- 
"  jurious,  mischievous,  and  illegal,  but  I  did  it  with  an 
"  excellent  intention.'  And  it  must  also  be  remarked, 
'  that  a  publication  not  warranted  by  the  nature  and 
'  exigency  of  the  occasion,  cannot  be  justified  in  a  crimi- 
'  nal  any  more  than  a  civil  proceeding ;  for  if  the  occa- 

*  sion  does  not  justify  or  excuse  the  act,  neither,  on  the 
'  principle  just  adverted  to,  can  mere  abstract  good  in- 
'  tention  supply  a  sufficient  defence.' 

Such  is,  as  I  understand,  the  purport  of  the  proposed 
definition  by  the  Criminal  Commissioners  in  England, 
when  the  whole  of  their  passage  is  taken  : — '  Whosoever 
'  shall  maliciously  compose,  print,  or  publish  any  sedi- 
'  tious  libel,  expressing  or  signifying  any  matter  or  mean- 
'  ing  tending  to  bring  into  hatred  or  contempt  the  person 
'  of  Her  Majesty,  or  her  government,  or  the  constitution 
'  of  the  united  kingdom  as  by  law  established,  or  both 
Houses  or  either  House  of  Parliament,  or  to  excite  Her 


96  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     '  Majesty's  subjects  to  attempt  the  alteration   of  any 
and  othTra.  *  matter  in  Church  or  State  as  by  law  established,  other- 
High  Court. '  wise  than  by  lawful  means,  shall  incur  the  penalties  of 
^Ts'if.'    '  tlie  eleventh  class.'     Here,  the  word  '  intended'  is equi- 
Conspiracy  valcut  in  reasoning  and  legal  import  to  *  wickedly  and 
&  Sedition. ,  feloniously'  or  '  seditiously.'    It  is  not  used  with  refer- 
ence to  any  intent  directly  to  produce  the  precise  results 
which  the  language  of  the  libel  tends  to  produce.     The 
8th  article  of  the  same  section  also  shows  this  to  be  their 
meaning ;  and  the  above  definition  distinctly  comprehends 
and  supports  this  verdict  as  suflSicient  when  applied  to 
the  indictment. 

Concurring  in  the  view  of  the  law  as  thus  explained, 
it  appears  to  me  to  be  very  clear,  that  a  verdict  finding 
the  parties  guilty  of  sedition,  in  so  far  as  that  they  used 
language  calculated  to  excite  popular  disaffection  and 
resistance  to  lawful  authority,  on  this  indictment,  is  a 
good  conviction  in  point  of  law,  and  that,  on  the  motion 
of  Her  Majesty's  Advocate,  sentence  must  be  pronounced 
on  this  verdict.  But  I  must  add,  in  conclusion,  that  it 
is  matter  of  satisfaction  to  me,  that  the  Jury  did  leave 
out  the  word  intended,  in  the  special  way  in  which  it  was 
inserted  in  this  indictment — not  only  because  the  case  is 
thereby  presented  to  us  in  a  much  less  aggravated  light, 
but  also  because  if  I  had  been  on  the  Jury,  as  the  more 
serious  charge  had  not  been  proved,  I  believe  that  I 
should  have  returned  the  same  verdict  with  that  which 
is  recorded. 

LoED  Mackenzie. — I  concur.  I  think  the  crime  of  sedi- 
tion is  sufficiently  constituted  by  using,  whether  in  print- 
ing, or  writing,  or  orally,  language  calculated  (which,  of 
course,  means  plainly  calculated)  to  excite  popular  disaf- 
fection, and  resistance  to  lawful  authority,  provided  this 
be  done  wickedly  or  seditiously,  i.  e.  without  lawful  jus- 
tification or  excuse.  I  do  not  think  that  to  constitute 
sedition,  it  is  essential  that  there  shall  be  in  the  delin- 
quent a  desire  or  intention  to  excite  this  disaffection  and 
insurrection,  or  resistance,  provided  he  intends  to  use 


AND  CIKCUIT  COURTS  OF  JUSTICIARY.  97 

the  words,  plainly  calculated  to  excite  these,  and  uses     No.  6. 
them  ;  and  that  without  justification  or  excuse.   It  seems  and  others. 
to  me  clear,  that  this  last,  i.  e.  using  the  words,  is  enough  High  court. 
to  cause  the  evil  of  the  crime,  i.  e.  danger  to  the  public,  and     "gig. ' 
that  the  want  of  justification  or  excuse  is  suflRcient  to  make  conspiracy 
the  committer  of  it  answerable  criminally.     And  if  such  ^  Sedition. 
an  act  be  a  crime  at  all,  if  it  be  not  lawful,  it  can  be  no 
other  crime  than  sedition     We  never  could  say,  that  it 
was  a  crime,  but  not  sedition,  and  so  not  falling  under 
the  recent  statute,  which  limits  the  punishment  of  sedi- 
tion, blit  does  not  limit  the  punishment  of  any  other 
crime.     Can  we  then  hold  such  conduct  not  to  be  crimi- 
nal at  all  ?     I  think  that  impossible. 

Put  the  case,  for  instance,  that  a  man,  without  any 
justification,  or  excuse,  prints  and  publishes  a  pamphlet, 
containing  words  plainly  calculated  to  excite  popular 
disaffection  and  insurrection,  or  resistance  to  lawful 
authority ;  and  that  this  is  proved  against  him  ;  but  that 
he  proves,  per  contra,  that  his  previous  conduct  was  highly 
and  zealously  loyal ;  that  accordingly,  he  had  at  first  re- 
fused to  print  the  pamphlet,  and  had  at  last  reluctantly 
yielded  to  do  it,  only  for  a  large  bribe,  and  afterwards  done 
his  best  to  counteract  its  effect — still  he  would  be  guilty 
of  sedition.  True,  his  desire  and  intention  would  ap- 
pear to  be  only  to  get  money.  But,  with  that  desire 
and  intention,  he  acted  without  justification  or  excuse, 
and  in  disregard  of  law,  and  printed  and  published  what 
was  in  itself  manifestly  dangerous  to  the  public.  He 
therefore  was  not  innocent  but  criminal,  i.  e.  seditious. 

Or  say,  that  a  man  did  the  same  thing,  moved  by 
threats  and  fear,  but  not  such  fear  as  amounted  to  a 
legal  justification — he  might  say  he  had  no  intention  to 
raise  disaffection,  or  resistance  to  lawful  authority — but 
that  would  not  sufiiciently  defend  him  from  a  charge  of 
sedition. 

Or,  say  he  did  it  only  to  shew  his  eloquence  and  inge- 
nuity as  Rousseau  is  said  to  have  written  against  the  ex- 
isting institutions  of  society,  after  at  first  intending  to 

G 


98  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     display  his  talents  on  the  other  side,  and  being  advised 

John  Grant  ,  7,  •        ,  „ 

and  Others,  by  a  fnend  that  the  side  of  innovation  was  best  for 

High  Court,  shewing  off  talent. 
°848. '       Or,  suppose  he  did  it  only  to  frighten  Government  or 

Conspiracy  Parliament  into  some  measure  which  he  favoured,  not 

&  Sedition,  ^j-yjiy  desiring  or  expecting  actual  insurrection  or  dis- 
alFection  to  take  place. 

In  all  these  cases,  and  many  others  that  may  be  ima- 
gined, the  person  must  be  guilty  of  sedition,  by  doing 
wilfully,  and  without  justification  or  excuse,  an  act  of  a 
seditious  tendency. 

It  is  said,  Mr  Hume  defines  sedition  to  be,  not  only 
calculated,  but  intended  to  excite  disaffection  and  trouble 
in  the  State.  But  the  passage  cited  for  the  pannels  has 
not  itself,  the  appearance  of  precise  or  accurate  defini- 
tion ;  nor  can  I  believe,  that  Baron  Hume  in  it  at  all 
contemplated  the  question,  whether  the  intention  to  ex- 
cite disaffection  or  trouble  was  essential.  For  if  he  had, 
he  would  have  followed  it  up  by  a  commentary  on  that 
branch  of  the  definition,  of  which  I  see  no  appearance 
whatever.  On  the  contrary,  he  says,  vol.  i.  p.  354  :• — 
«  The  treason  in  all  these  cases  is  the  same,  in  all  mea- 
'  sures  of  this  description,  by  exasperating  the  multi- 
'  tude,  and  infecting  them  with  jealousy  and  dislike  of 
'  the  established  order  of  the  state,  tend  directly  to  a 
'  breach  between  sovereign  and  subject,  and  to  fill  the 
'  realm  with  trouble  and  dissension.  To  prepare  which 
'  miserable  calamity,  can  no  more  be  doubted  to  be  a 
'  cognoscible  crime,  and  one  too  of  a  high  deg^ree,  than 
'  that  it  is  a  crime  to  partake  of  the  very  measures  of 
'  resistance  and  violence,  if  such  follow,  to  which  these 
'  exhortations  have  induced. 

'  The  characteristic  of  sedition  lies  in  the  forwarding, 
'  preparing,  and  producing  such  a  state  of  things  as  may 
'  naturally  issue  in  public  trouble  and  commotion. 

'The  crime  of  sedition  lies  in  the  stirring  of  such 
'  humours  as  naturally  tend  to  change  and  commotion 
•  in  the  state.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  99 

And  all  his  reasonins;  is  applicable  to  sedition  of  the    No.  6. 

T  1  .         1  John  Grant 

nature  i  have  stated.  and  others. 

Erskine  speaks  iii  the  same  way,  though,  no  doubt  he  High  Court. 
does  not  sufficiently  discriminate  sedition  from  leasing-     i848. ' 
making,     (Tit.  iv.  B.  iv.  §  29.)     He  says, — '  Verbal  sedi-' conspiracy 
'  tion,  which  in  our  statutes  gets  the  name  of  leasing-  ^  ^'^^^'°"- 
'  making,  is  inferred  from  the  uttering  of  words  tending 
'  to  sedition,  or  the  breeding  of  hatred  and  discord  be- 
*  tween  the  king  and  his  people.'     He  says  nothing  of 
intention. 

But  our  practice  is  what  affords  the  most  important 
authority  in  aid  of  what  is  in  itself  reasonable.  On  that 
I  need  not  go  over  what  your  Lordship  has  fully  treated 
already. 

Then,  if  such  be  the  nature  of  sedition  in  our  law,  how 
stands  the  present  case  ? 

The  indictment  sets  forth  that  the  pannels  seditiously 
used  language,  which  is  rfecited,  and  which  appears  to  be 
very  plainly  in  itself  of  a  seditious  nature.  And  then  it 
proceeds : — '  And  the  whole  or  part  of  the  language 
'  above  set  forth,  as  used  by  you  the  said  John  Grant, 
'  Henry  Ranken,  and  Robert  Hamilton  respectively  as 
'  above  libelled,  was  intended  and  calculated  to  excite 
'  popular  disaffection,  commotion,  and  violence,  and 
'  resistance  to  lawful  authority.' 

Now  here,  in  the  view  of  the  law  I  have  given,  the 
statement  of  that  language,  and  the  statement  that  it 
was  used  seditiously,  and  calculated  to  excite  popular 
disaffection:,  and  resistance  to  lawful  aiithority,  was  itself 
a  sufficient  charge  of  sedition.  The  statement  of  its  be- 
ing '  intended'  to  excite  these  was  not  essential,  but  in- 
tensive, raesintto  aggravate  the  charge,  not  to  constitute  it. 
So  stands  the  charge.  The  verdict  is — (Beads  verdict), 
and  a  finding,  in  like  terms,  by  a  majority,  is  added 
against  the  other  pannel.  And  the  jury  explained,  that 
they  omitted  the  word  '  intended,'  not  meaning  to  find 
that. 

Now,  I  can  regard  this  as  nothing  else  than  a  finding 


New  York  Life  Ins.  Co. 

LAW  LIBRARY, 
ST.  PAUL  BUILDING. 

100  CASES  BEFORE  THE  man  COURT 

jote  Grant  ^^  ^^^  pannels  guilty  of  the  sedition  libelled,  in  so  far  as 
and  Others,  charged  with  seditiously  using  words  calculated  to  excite 
High  Court,  disaffection  and  resistance  to  lawful  authority,  though 

Nov.  25.  .11  .  „  .  .  .  , 

1848.  not  With  the  aggravation  of  intention  to  excite  these. 
Conspiracy  And  if  that  was,  as  I  have  said,  a  sufficient  charge  of  se- 
dition, the  conviction  of  it  must  be  a  sufficient  conviction 
of  sedition.  It  is  a  conviction  of  guilt  and  of  sedition 
under  this  libel.  It  implies,  therefore,  that  the  words 
were  used,  not  justifiably,  or  excusably,  but  seditiously, 
calculated  to  excite  disaffection  and  unlawful  resistance, 
and  so  is  a  conviction  of  legal  sedition.  The  limitation 
of  the  finding  makes  the  sedition  less  aggravated,  and 
must  lighten  the  sentence.  But  it  cannot  warrant  ab- 
solvitor. 

The  finding  in  this  case  is  not  ambiguous.  It  cannot 
mean,  that  the  pannels  used  the  words  justifiably  or  ex- 
cusably, for  then  they  would  not  have  been  found  guilty 
of  sedition,  or  guilty  at  all ;  but  not  guilty.  It  must 
mean,  that  they  were  guilty  of  the  sedition  libelled,  as 
far  as  they  used  the  words. 

I  need  say  nothing  of  the  competency  of  a  jury  find- 
ing part  only  of  what  is  libelled.  It  is  not  disputed, 
and  is  warranted  by  the  ordinary  style  of  our  indict- 
ments— *  all  which,  or  part  thereof,  being  found  proven, 
'  you  ought  to  be  punished  with  the  pains  of  law,'  &c. 

Lord  Moncreiff. — I  paid  all  the  attention  in  my 
power  to  the  argument  on  the  nature  and  effect  of  this 
verdict,  and  I  have  since  considered  very  carefldly  the 
whole  matter,  and  examined  all  the  cases  on  the  subject 
as  I  find  them  variously  reported. 

It  is  undoubtedly  a  mitigated  verdict,  with  reference 
to  the  charges  in  the  indictment.  It  finds  the  very 
serious  charge  of  conspiracy  libelled  not  proven.  It 
also  finds  John  Grant,  who  was  indicted  along  with 
Ranken  and  Hamilton,  not  guilty  of  the  remaining 
charge  of  sedition.  But  it  finds  the  parties  now  at  the 
bar  guilti/  of  sedition  in  the  particular  terms  expressed 
in  the  verdict : — '  Unanimously  find  the  panel  Robert 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  101 

'  Hamilton  ffuilty  of  sedition,  in  so  far  as,  that  he  used  ^  ^°-J-  ^ 

°         J  JohnGraut 

*  language  calculated  to  excite  popular  disaffection  and  and  othprs. 

*  resistance  to  lawful  authority;  and,  by  a  majority  of  High  Comt. 

*  one,    find   the   panel   Henry   Ranken   also   guilty  of     i848. 


*  sedition,  in  so  far  as,  that  he  used  language  calculated  Conspiracy 

*  to  excite  popular  disaffection  and  resistance  to  lawful 

*  authority.' 

Looking  at  the  verdict,  as  it  50  stands  recorded,  and 
expressly  approved  of  by  the  Jury  when  it  was  read  to 
them,  I  was  of  opinion,  at  the  time,  that  it  was  a  good 
and  effectual  verdict,  to  make  these  panels  stand  con- 
victed of  the  crime  of  sedition  libelled  in  the  major 
proposition  of  the  indictment,  to  a  certain  extent  and 
effect.  And  after  attending  to  all  the  circumstances  and 
considerations,  on  which  difficulties  and  doubts  have  been 
raised  on  this,  I  am  still  of  opinion  that  it  is  a  good  ver- 
dict, on  which  some  sentence  ought  to  pass,  as  moved  for 
by  the  Public  Prosecutor. 

The  indictment  in  this  case  libels  sedition  simply  in 
the  major  proposition  (clearly  a  good  form,  according  to 
the  case  of  Sinclair  and  later  cases),  and  then,  in  the  mi- 
nor proposition,  it  states  the  facts  on  which  these  panels 
were  accused  of  having  committed  that  crime ;  and  it 
libels  particularly,  that  each  of  the  prisoners  did,  in  the 
meetings  set  forth,  '  openly  and  seditiously'  deliver  cer- 
tain speeches,  some  of  the  material  words  of  which  are 
quoted  in  the  indictment,  and  the  whole  terms  or  sub- 
stance of  which  were  more  fully  proved  in  evidence. 
And  it  certainly  bears,  that  the  conduct  and  speeches  of 
the  panels  '  were  seditious,  and  were  intended  and  calcii- 
'  lated  to  excite  popular  disaffection,  commotion,  and 
'  violence,  and  resistance  to  lawful  authority.' 

The  Jury  have  not  found  the  prisoners  simply  guilty 
of  sedition  as  libelled ;  and  they  have  not  found  them 
guilty  of  sedition  under  all  the  qualities  expressed  in 
that  clause  of  the  minor  proposition.  But  they  have 
found  them  guilty  of  sedition  :  in  so  far  as  that  (with  re- 
ference to  the  particular  facts  laid  in  the  indictment  as 


102  CASES  BEFORE  THE  HIGH  COUKT 

JohnGrant  *^  ^*^^'  ^"*^  *^®  avermeiit  that  what  he  did,  he  did  openly 
and  Others,  fl^fi?  sedUiously)  he  used  language  '  calculated  to  ejecite 
^if''^  2?*' '  pop^^'^'''  disaffection  and  resistance  to  lawful  authority.' 
1848.     In  this  finding,  they  have  left  out  the  word  '  intended,' 
Conspiracy  and  left  the  matter  to  stand  simply  on  this,  that  the 
'  language  used  openly  and  seditiously  was  *  calculated  to 
"  excite  popular  disaffection  and  o'egistance  to  lawful  authc" 
'  rity.'    The  matter,  therefore,  stands  thus ;  that  the  Jury 
have  not  found,  and  I  take  it,  have  left  out  e^v  proposito 
that  word  '  intended,'  not  being  pi'epared,  as  I  under- 
stand their  explanation,  to  find  that  the  langua,ge  was 
not  only  calculated  to  produce  the  effect  libelled,  but  that 
it  was  actually  intended  to  operate  in  that  manner.    I  -do 
not  understand  the  verdict  as  having  negatived  the  exist- 
ence of  such  intention.     But  such  intention  not  being 
found,  we  can  only  take  the  verdict  on  that  which  is  found. 
If  the  jury  had  supposed  or  meant  that  they  were  finding 
the  prisoners  not  guilty,  they  would  no  doubt  have  said 
so,  as  they  did  in  the  case  of  Grant. 

Now  the  question  appears  to  me  to  be,  Whether,  when 
the  verdict  finds  the  parties  guilty  of  sedition,  defining 
the  nature  and  extent  of  that  sedition,  in  the  terms 
employed,  the  facts  set  forth  in  those  terms  do  or  do  not 
by  law  amount  to  sedition  ? 

But  if  the  law  be,  as  I  think  it  is,  that,  under  a  charge 
of  sedition,  if  the  acts  or  speeches  libelled,  are  in  their 
own  nature  seditious,  and  calculated  to  excite  disaffection 
and  resistance  to  lawful  authority,  that  is  sedition  ;  and 
that  it  is  not  necessary  or  essential  to  libel  or  to  prove  an 
actual  intention  in  the  speakers,  writers,  or  actors  ;  then 
as  the  word  intended  in  the  indictment  was  not  necessary 
to  the  charge,  the  verdict  finding  the  parties  guilty  of 
sedition,  in  terms  sufficient  to  satisfy  the  principle  of  law, 
must  be  effectual  as  a  conviction  of  the  accused,  and  suf- 
ficient to  warrant  a  sentence  by  the  Court. 

I  do  not  think  it  is  necessary  now  to  go  through  the 
various  ca,ses  which  have  occurred,  in  the  practice  of  the 
Court  on  indictments  for  sedition,  though  I  have  made 


ANt)  CIRCUIT  COURTS  OF  JUSTICIARY.  103 

notes,  I  believe,  of  nearly  all  of  them.     That  has  been    No.  e. 

Ill  .  .1  »  ,,  John  Grant 

already  done,  in  my  judgment,  very  fully  and  effectually,  and  other?. 
The  indictments  do  in  general  bear,  as  all  indictments  High  court. 

Nov.  25. 

do,  that  the  things  charged  were  done  wickedly  and  fe-     1848. 


loniouslt/,  or,  in  the  particular  case  of  sedition,  sometimes  Conspiracy 
openly  and  seditiously,  vrhich  has  been  found  relevant  in 
the  present  case,  as  well  as  in  other  cases ;  and  in  a  few 
instances  the  word  intended,  or  some  similar  word,  has 
been  applied  to  the  character  of  the  speeches  or  writings 
libelled.  But  in  thei  general  course  of  such  indictments, 
the  terms  most  commonly  used,  are  '  calculated,'  or 
'  tending,'  or  some  such  word,  applied  to  the  words  or 
writings  specified.  Sometimes  the  words  are  '  of  a  se- 
'  ditious  tendency'  or  '  ohviously  calculated  to  stir  up  a 
'  spirit  of  disaffection,'  &c.  Sometimes  writing  and  print- 
ing a  seditious  pamphlet  '  calculated  to  degrade  and  to 
*  bring  into  contempt  our  present  happy  system  of  go- 
'  vernment,'  &c. ;  sometimes  (as  in  M'Laren  and  Baird) 
'  wickedly  and  feloniously  deliver  a  speech  containing  a 
'  number  of  seditious  and  inflammatory  remarks  and  asser- 
'  tions  CALCULATED  to  degraded 'and  bring  into  contempt 
'  the  government  and  legislature,  and  to  withdraw  there- 
'  from  the  confidence  and  affection  of  the  people,  and  fill 
'  the  realm  with  trouble  and  dissension.' 

I  gather  from  all  the  cases,  that  the  essence  of  the 
crime  of  sedition  consists  in  the  cJiaracter  and  plain  mean- 
ing and  import  of  the  words  spoken  or  written,  as  being 
calculated  or  as  tending  to  excite  disaffection,  to  bring 
the  laws  and  constitution  into  contempt,  or  to  excite  to 
resistance  to  lawful  authority.  And  when  this  is  clear  in 
any  particular  case,  provided  the  words  had  been  deliberate- 
ly and  by  the  free  will  of  the  party  spoken  or  written,  the 
crime  of  sedition  has  been  committed.  No  doubt,  there 
must  be  intention  to  this  effect,  that  the  party  did  intend 
to  spedk  or  to  write  i\\e  things  laid  to  his  charge,  bearing 
the  character  of  being  so  calculated  to  excite  disaffection. 
And  if  the  words  do  not  in  their  natural  and  obvious 
meaning  import  that  which  is  alleged,  it  may  sometimes 


104  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    be  necessary  to  assign  and  to  prove  an  entirely  different 
and  Others,  meaning  as  attached  to  the  words, — as  in  the  case  of 
High  Court.  Daniel  Isaac  Eaton,  in  which  it  was  alleged  that  King 
1848.     George  the  third  was  represented  under  the  figure  of  a 
Conspiracy  game  cock.     But  whcre  the  meaning  and  import  of  the 
"  words  is  not  at  all  in  dispute,  the  only  question  is,  after 
it  has  been  proved  that  they  werp  used  advisedly  by  the 
parties,  whether  they  are  of  the  seditious  import  libelled, 
in  so  far  as  they  are  calculated  or  have  a  tendency  to  ex- 
cite disaffection  and  resistance  to  lawful  authority. 

Without  thinking  it  necessary  to  go  into  further 
detail,  after  the  full  explaijation  already  given,  I  would 
only  say,  that  my  attention  has  been  most  particularly 
fixed  on  the  whole  proceedings  which  took  place  in  the 
remarkable  case  of  Robertson  and  Berry,  who  were  tried 
in  March  1 793,  on  an  indictment  charging  them  with 
the  crime  of  sedition,  in  so  far  as  they  were  guilty  of 
printing  and  publishing  a  seditious  pamphlet,  '  containing 
'  false,  wicked,  and  seditious  assertions,  calculated  to  de- 
'  grade  and  bring  into  contempt  our  present  happy  system 
'  of  government,  and  withdraw  therefrom  the  confidence 
'  and  affection  of  our  subjects.'  They  were  charged  with 
wickedly  and  seditiously  printing  and  publishing  the 
pamphlet  so  designated.  Upon  that  charge,  a  verdict 
was  returned,  by  which  the  jury,  '  all  in  one  voice  find  it 
'  proven  that  the  said  James  Robertson  did  print  and 
'  publish,  and  that  the  said  Walter  Berry  did  publish  only 
'  the  pamphlet  libelled  on.'  That  was  a  special  verdict, 
as  the  verdict  in  the  present  case  is.  It  did  not  find 
either  of  the  prisoners  guilty  of  sedition  as  libelled,  or  of 
the  crime  libelled,  but  it  found,  in  specific  terms,  a  certain 
thing  as  to  each  of  the  prisoners,  without  one  word  as  to 
the  intention  of  either  of  them,  and  not  saying  specially 
that  they  did  those  things  wickedly  and  feloniously,  or 
with  any  such  quality.  This  is  the  more  important,  be- 
cause it  gave  rise  to  a  great  deal  of  discussion,  in  which 
the  accused  had  the  aid  of  the  very  eminent  counsel,  Mr 
Wight,  and  Dean  of  Faculty  the  Honourable  Henry 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  105 

Erskine ;  and  after  long  argument,  and  after  taking  time    No.  e. 
to  consider,  the  Court  were  unanimous,  that  the  verdict  and  others. 
was  effectual  as  to  Robertson  ;  but  they  were  divided  in  High  Court. 

Nov.  25. 

opinion  on  the  case  of  Berry.     Yet  it  was  decided  by  a     1 848. 
majority  {Eskgrove,  Abercrombi/,  Justice-Clerk  Brawfield  Conspiracy 
against  Henderland  and  Dunsinnan)  that  it  was  a  good 
verdict  as  to  Berry  also.     The  objection  was  precisely 
that  the  verdict  did  not  find  the  intention.     But  it  was 
decidedly  held  that  that  was  not  necessary. 

And,  indeed,  if  it  were  necessary  that  that  should  be 
specially  found  by  the  jury,  wherever  they  do  not  find  a 
simple  verdict  of  guilty  as  libelled,  it  would  be  difficult 
to  see  how  any  man  should  be  found  guilty,  upon  the  act 
of  printing  or  publishing  the  most  seditious  and  inflam- 
matory libel  which  can  be  supposed.  And  yet  I  take  it 
it  to  be  clear  law,  that  every  man  is  answerable  to  the 
law  for  what  he  prints  and  publishes  to  the  world  of  a 
seditious  tetidency.  He  may  sometimes  prove  a  case,  to 
relieve  himself  wholly  or  partially.  But  in  the  absence 
of  all  such  proof,  the  case  is  clear  on  the  act  done. 

I  do  also  think  it  very  striking,  that  in  that  very  able 
address  which  Mr  John  Clerk,  whose  zeal  for  the  interest 
of  his  clients,  as  well  as  for  the  liberty  of  the  subject,  and 
whose  great  knowledge  of  law,  and  extraordinary  acute- 
ness  of  discrimination,  never  were  exceeded  in  any  bar, 
made  for  Mr  Fysche  Palmer,  he  nowhere  maintained  (and 
neither  did  even  Mr  John  Haggart,  in  objecting  to  the  re- 
velancy  of  the  indictment)  that  the  jury  must  be  satisfied  . 
of  the  actual  intention  of  Mr  Palmer  in  the  matter.    But, 
on  the  contrary,  Mr  Clerk  says,  in  emphatic  terms,  '  To 
'  render  a  writing  seditious,  it  must  be  intended  or  calcu- 
'  lated  to  urge  the  people  to  actual  violence ;'  and  the 
charge  of  Lord  Abercromby  in  that  case  was  entirely  on 
the  question,  whether  the  paper  was  of  a  seditious  import 
or  tendency,  and  whether  Palmer  was  the  writer  or  art 
and  part  in  writing,  printing,  and  publishing  it. 

In  connection  with  that  case,  and  as  very  important  in 
the  question,  I  beg  leave  further  to  observe,  that  in  all 


106  CASES  BEKOllE  THE  HIGH  COURT 

John  Grant  *^®  indictmeiits  to  which  I  have  been  alluding,  there  is 
and  Others,  ■yyhat  used  to  be  Called  the  'at  least'  clause,  on  which 
H^g^Court.  the  accused  might  be  found  guilty  as  art  and  part,  though 
1848.'  not  proved  to  be  the  direct  author  or  actor  in  the  writing, 
Conspiracy  printing,  or  publishing.     And  so  the  verdict  in  the  case 

&  Sedition.  ^.  _    ,  ^  °  .  i   .        i       i-i     i         i 

of  Palmer  finds  '  the  address  mentioned  m  the  libel  to  be 
'  a  seditious  writing,  tending  to  mflame  the  minds  of  the 
'  people  :  Find  that  the  panel  was  art  and  part  guilty  in 
'  writing  the  said  address,  and  that  he  is  guilty  of  causing 
'  the  said  address  to  be  printed,  and  that  he  is  guilty  of 
'  distributing,  and  causing  to  be  distributed,  the  said  sedi- 
'  tious  and'inflammatory  writing.^  This  is  another  example 
of  a  special  verdict,  bearing  not  a  word  o/'intjention  and  an 
important  part  of  it  depending  on  the  at  least  clause,  in 
which  no  intention  is  set  forth,  except  what  might  be  im- 
plied in  the  nature  of  the  writing  itself. 

I  shall  not  go  farther  into  this  matter,  excepting  only 
to  observe,  with  all  manner  of  diffidence,  that,  as  far  as  I 
am  informed,  it  would  be  quite  clear  in  England  that,  if 
the  libel  set  forth  in  the  indictment  ov  information  is  in  its 
nature  seditious,  it  is  not  material  whether  an  actual  in- 
tention be  found  or  not.  Thus,  Lord  EUenborough  said, 
in  the  case  of  the  King  against  Oobbet,  '  that  if  a  publi- 
'  cation  be  calculated  to  alienate  the  affections  of  the 
'  people,  by  bringing  the  government  into  disesteem,  whe- 
'  ther  the  expedient  resorted  to  be  ridicule  or  obloquy, 
'  the  writer,  publisher,  Sec,  are  punishable;  and  whether 
.  '  the  defendant  really  intended  by  his  publication  to  alienate 
'  the  affections  of  the  people  from  the  government  or  not,  is 
'  NOT  MATERIAL.  If  the  publication  be  calculated  to  have 
'  that  effect,  it  is  a  seditious  libel.'  And  see  Ilea:^  v.  Bur- 
detf,  &c. 

I  am  therefore  of  opinion,  that,  in  this  case,  the  verdict 
is  sufficient,  to  infer  a  sentence  as  for  sedition.  But,  as 
I  have  said  before,  it  is  a  verdict  finding  the  prisoners 
guilty  of  a  charge  of  sedition  considerably  mitigated. 

Lord  Medwyn. — The  indictment  in  this  case  contains 
a  distinct  charge  of  sedition,  and  the  Jury  have  found. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  107 

by  their  verdict,  that  the  two  pannels  are  guilty  of  •  se-    No.  6. 

T   •  •  n  1  11,  11  -John  Grant 

'  dition,  m  so  tar  as,  that  they  used  language  calculated  and  others. 
'  to  excite  popular  disaffection,  and  resistance  to  lawful  High  Court. 

.  .  Nov.  25. 

'  authority.'  This  was  in  answer  to  the  facts  constitu-  iius. 
tive  of  the  charge,  that  they  openly  and  seditiously  used  conspiracy 
the  language  there  set  forth.  This  is  a  distinct  finding  of 
the  offence  charged  ;  and  in  the  explanation  which  oc- 
curred with  the  Jury  when  they  returned  their  verdict, 
they  pointedly  told  us  that  it  was  their  meaning  to  find 
them  guilty  of  sedition,  in  so  far  as  they  did  what  is  there 
expressed.  Now,  is  there  anything  which  neutralizes 
or  nullifies  this  distinct  finding  ?  nothing  certainly  in  the 
verdict,  for  it  contains  nothing  more  than  the  words  al- 
ready quoted  ;  but  it  is  said  that  the  charge  which  the 
Jury  had  to  try  was,  whether  language  was  used,  '  in- 
'  tended  and  calculated  to  excite  disaffection,'  and  that 
the  Jury  have  not  found  anything  with  regard  to  the 
intention  of  the  speakers,  and  as  the  Jury  explained  to 
the  Court,  this  was  not  an  oversight,  but  omitted  ea^ 
proposito  •■  then,  it  is  argued,  that  the  intention  to  ex- 
cite disaffection  not  being  found,  but  the  reverse  inferred, 
that  this  verdict  does  not  support  the  charge  and  the 
crime  of  sedition,  although  the  Jury  may  have  thought 
that  what  they  found  was  sufficient  to  do  so.  No  doubt 
there  is  some  difficulty  here,  and  a  good  deal  of  plausi- 
bility in  the  objection,  but  after  some  wavering  in  my 
opinion,  I  have  now  come  back  to  my  original  impres- 
sion, that  the  objection  cannot  be  sustained.  The  doubt 
in  my  mind  arose  from  the  description  of  the  crime  of 
sedition  given  by  Baron  Hume,  '  that  it  reaches  all  prac- 
'  tices  which  are  suited  and  intended  to  disturb  the  tran- 
'  quillity  of  the  State,'  and  the  sanction  which  seemed  to 
be  given  to  this  statement  by  the  present  indictment,  as  if 
it  was  a  necessary  element  in  the  charge  that  the  words 
openly  and  seditiously  spoken  were  intended  as  well  as 
calculated  to  excite  disaffection,  so  as  to  call  upon  the 
Jury  expressly  to  find  the  intent  as  well  as  the  fact  of  ut- 
tering seditious  expressions.    But  I  am  now  satisfied  that 


108  CASES  BEFORE  THE  HIGH  COURT 

No.  6.     the  crime  of  sedition  requires  neither  the  intent  to  be  set 

John  Grant  „,.,,,.  ,       /.  iij.it 

and  Others,  forth  in  the  indictment,  nor  to  be  found  by  the  Jury. 

High  Court.  It  is  not  one  of  those  offences  where  we  look  to  the  in- 
■^Tis.^"  tent  so  much  as  to  the  consequences,  or  the  effects  pro- 

CoDspiracy  duced,  or  calculated  to  be  produced,  by  the  words  ut- 

&  Sedition.  jgj.gj^  ^^^  meaning  of  which  is  plain.  It  is  the  danger 
to  the  tranquillity  of  the  State  from  seditious  harangues 
addressed  to  a  multitude  of  people,  rather  than  to  the 
intention  of  the  speaker,  that  the  law  looks  to.  Some 
crimes  consist  in  intent,  and  then  this  must  be  specially 
set  forth  in  the  charge,  and  must  be  found  by  the  Jury. 
That  branch  of  the  law  of  treason  which  consists  in  com- 
passing and  imagining  the  death  of  the  king,  rests  on 
the  intent,  and  the  overt  acts  are  only  to  prove  this  in- 
tent. The  intent  must  be  charged  and  must  be  found. 
In  a  more  ordinary  department  of  law,  there  may  be  a 
charge  to  stab  any  one,  with  intent  to  murder,  rob,  or 
maim,  or  disfigure  ;  there  the  essence  of  the  crime  is  the 
intent.  But  sedition  is  not  a  crime  of  this  character  : 
its  essence  is  using  seditious  language,  calculated  to  ex- 
cite disaffection  in  the  minds  of  the  hearers.  Accord- 
ingly, indictments  have  been  well  laid,  and  held  relevant, 
without  any  thing  about  intention  being  stated  in  them. 
Indeed,  I  do  not  know  that  an  indictment  for  sedition 
was  ever  objected  to,  because  nothing  was  said  as  to  the 
intention  of  the  speaker,  but  only  the  tendency  of  his 
language  stated.  Thus,  in  the  case  of  Morton  Sf  Others, 
in  1793,  the  charge  was,  that  they  were  guilty  of  sedi- 
tion, by  uttering  seditious  speeches,  tending  to  excite  a 
spirit  of  disloyalty  and  disaffection  to  the  king  and  esta- 
blished government.  I  think,  in  all  the  many  cases  for 
sedition  tried  at  that  time,  the  same  phraseology  was 
adopted.  In  the  case  oi  Be'try  and  Robertson,  the  state- 
ment was,  it  was  calculated  to  degrade  and  bring  into 
contempt  the  Government :  in  Fysche  Palmer,  the  same 
term  is  used,  and  in  Skirving's,  and  in  others.  We  must 
never  forget  that  these  prosecutions  were  conducted  by 
the  able  Crown  counsel  of  the  day,  including  Solicitor- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY,  109 

General  Blair  and  Mr  Burnett,  and  the  pannels  were  j^hn  Grant 
often  defended  by  the  greatest  lawyers  at  the  Bar,  in-  and  others. 
eluding  Mr  Wight,  Mr  Clerk,  and  Mr  Gillies  among  High  Court, 
others.     Again,  at  a  later  period,  in  the  case  of  M'Laren     i848. 
and  Baird,  in  1817,  sedition  was  charged,  in  so  far  as  Conspiracy 

1  111,  1  7-  1     •  1  &  Sedition. 

the  pannels  had  spoken  words  tending  to  bring  the  go- 
vernment and  legislature  into  contempt.  The  eminent 
counsel  who  defended  the  accused,  distinctly  admitted 
that  this  was  a  relevant  charge  of  sedition  ;  that  it  was 
not  necessary  specifically  to  set  forth  intention  in  the 
charge,  and  on  this  they  were  convicted  and  punished. 
One  cannot,  however,  wonder  that  an  express  assertion 
of  intention  in  a  charge  of  using  seditious  language, 
especially  to  an  unlawful  assembly,  should  be  introduced 
into  an  indictment  as  an  important  aggravation  of  the 
charge,  as  was  done  in  some  portions  of  the  indictment  in 
Muir's  case  ;  for,  when  any  one  at  a  large  public  meeting 
of  the  lower  classes,  addresses  them  in  inflammatory  lan- 
guage, as  men  unjustly  oppressed  by  their  rulers,  and  incit- 
ing them  to  redress  their  wrongs,  and  to  provide  guns  and 
bayonets,  for  the  purpose  of  resistance,  it  must  be  pre- 
sumed that  the  speaker  intends  that  his  views  should  be 
adopted,  and  his  advice  followed  :  it  is  the  only  suppo- 
sable  motive  for  his  having  addressed  such  language  to 
such  an  audience.  The  intention  is,  in  short,  implied 
in  the  mere  use  of  the  words,  and  proved  by  it.  If 
the  accused  can  shew  that  he  had  no  such  motive, 
but  a  different  one,  and  that  an  innocent  one,  not 
plainly  calculated  to  create  dissatisfaction,  this  may 
possibly  be  a  defence  for  him,  and  save  him  from 
what  the  law  implies  in  his  having  seditiously  uttered 
words  calculated  to  excite  disaffection.  But  it  will  not 
do  merely  to  allege  and  prove  another  motive  than  the 
intention  to  excite  dissaffection — it  must  be  some  inno- 
cent motive,  and  not  calculated  to  have  any  other  than 
the  intended  effect,  if  such  can  be  found ;  such  only  would 
justify  his  conduct.  For  instance,  suppose  this  case, — a 
very  improbable  one,  no  doubt, — that  a  speaker,  vain  of 


110  CASES  BEFORE  THE  HIGH  COURT 

John  Gran  ^^®  oratory,  conceited  enough  to  think  he  could  regulate 
and  others,  and  rcstraiu  the  feelings  and  conduct  of  a  mob,  should, 
High  Court,  with  no  other  motive  but  a  display  of  his  oratorical 
1848.'  powers,  and  speaking  even  against  his  own  feelings  and 
Conspiracy  convlctious,  addrcss  a  public  meeting,  and  use  sedi- 
tious language  to  them,  surely  this  would  be  sedition  for 
which  the  speaker  would  be  responsible,  as  calculated  to 
excite  disaffection,  although  he  had  not  the  most  remote 
intention  that  this  should  be  the  effect  of  his  oratory. 
Again,  suppose  a  hired  orator  were  procured  for  the  pur- 
pose :  would  his  having  no  other  intention  in  what  he  did, 
except  to  pocket  the  sum  for  which  he  had  undertaken 
the  task,  be  any  defence  to  him  ?  If  any  one  uses  in- 
flammatory language  to  an  excitable  crowd  of  people, 
though  without  the  most  remote  intention  to  excite 
them,  he  must  be  responsible  for  seditioui  just  as  much 
as  a  man  will  be  answerable  to  the  law,  if  he  fires  a  pis- 
tol in  a  street  and  some  one  is  injured  by  the  shot,  al- 
though he  had  not  the  slightest  intention  of  injuring  any 
one,  and  did  not  even  observe  any  one  in  the  way.  The 
act  was  calculated  to  do  mischief,  and  it  has  done  mis- 
chief. He  ought  to  have  been  aware  of  such  a  possi- 
bility, and  is  held  to  be  guilty,  because  he  did  not  attend 
to  this.  So  also,  the  seditious  speaker  cannot  be  al- 
lowed to  use  inflammatory  language  to  a  mob,  and  say 
he  had  no  intentioh  to  excite  them.  I  think  it  clear, 
then,  that  the  charge  would  have  been  good  without 
stating  that  the  seditious  words  were  intended,  and  that  it 
is  sufficient  if  calculated,  to  produce  the  efiect  stated.  A 
jiu-y  need  not  find  all  the  facts  and  circumstances  stated 
in  the  minor,  provided  they  find  what  are  sufficient  to 
support  the  charge  in  the  major,  and  I  think  this  is 
amply  done  here.  The  terms  of  the  verdict  shew  that 
it  was  a  well  considered  one  ;  while  they  do  not  find  any 
thing  as  to  intention,  observe  they  do  not  even  find  that 
the  words  used  were  calculated  to  excite  '  commotion 
'  and  violence,'  which  is  also  in  the  charge,  plainly 
meaning  to  characterize  the  sedition  which  they  do  find 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  Ill 

proxted,  as  of  a  less  dangerous  kind  than  if  they  had    No.  6. 

„,,,,,,  .     ^     .     T,  ,  ,      n     1  John  Grant 

found  the  whole  allegation  ;  in  like  manner  they  only  nnd  and  others, 
it  calculated  to  excite  popular  disaifection  and  resistance  High  Court. 
to  lawful  authority,  and  I  think  that  they  declined  to  find     \sis. 
any  thing  as  to  intention  with  the  same  view  :  they  held  conspiracy 
this  to  be  an  aggravation  of  the  offence  of  which  they  ^  ^^'^'''o"- 
found  the  paimels  guilty,  as  the  other  would  have  been 
also,  and  omitted  it  with  the  same  view  of  lowering  the 
character  of  the  sedition,  for  which  they  held  the  pannels 
must  be  answerable.     The  omission  of  any  finding  as  to 
intention,  does  not  then  nullify,  but  only  characterises, 
the  sedition,  which  is  expressly  and  substantively  found. 

Lord  Cockburn. — I  have  no  idea  of  a  crime  without 
guilt  in  the  mind  of  the  criminal.  No  crime  can  be 
committed  by  any  mere  act,  abstracted  from  all  consi- 
deration of  motive.  Actus  non  facit  reum  nisi  mens  sit 
rea.  In  the  great  majority  of  cases,  the  mental  crimi- 
nality consists  in  the  intention  to  do  the  particular  thing 
charged  ;  and  hence  the  wickedness  of  that  intention  is 
commonly,  though  perhaps  loosely,  given  as  descriptive 
of  the  only  sort  of  guilt,  that  exists.  But  it  is  not  to  the 
precise  case  of  a  deliberate  intention  to  commit  the  exact 
crime,  that  the  principle  can  even  be  meant  to  be  ap- 
plied. One  crime  may  obviously  be  committed  while 
another  was  meant ;  there  may  be  criminality  in  a  good 
motive,  such  as  in  the  love  of  applause  or  of  gain  ;  and 
there  may  be  a  culpable  indifference  to  consequences, 
which  implies  wickedness,  and  is  itself  a  crime.  What 
the  principle  means,  is,  that  there  must  be  mains  animus. 
But  there  are  so  few  cases  in  which  this  animus  means 
anything  except  guilty  intention,  that  this  last  expression 
is  usually  given  as  denoting  the  general  meaning.  The 
inward  guilt,  whatever  it  may  be,  may  be  inferred  from 
the  tendency  of  the  act,  but  it  is  never  in  the  mere  ten- 
dency, apart  from  malus.  animus,  that  the  guilt  consists. 

There  is  no  case  to  which  this  principle  applies  so 
strongly  as  to  sedition.  And  this  for  a  plain  reason.  In 
a  country  like  this,  where  everything  public  is  managed 


112  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  by  free  discussion,  and  the  free  action  of  parties,  opinions 
and  others,  and  projects  are  propounded  daily  by  one  set  of  people 
High  Court,  as  uecessary  for  the  immediate  maintenance  of  autho- 
"i848.^'  rity,  which  are  denounced  by  other  sets  as  involving  its 
Conspiracy  immediate  prostration.  Upon  vital  questions  there  are 
&  Sedition.  £g^  honest  politicians,  or  conscientious  sectarians,  who 
do  not  think  their  opponents  views  dangerous.  It  is  the 
fact  of  their  being  supposed  to  be  dangerous  that  makes 
the  schism.  If,  in  such  a  state  of  things,  the  mere  con- 
viction by  one  party  that  what  his  adversary  wished,  led 
to  disorder  and  trouble,  justified  a  conviction  of  sedition, 
it  would  just  depend  on  who  the  jury  were,  whether  an 
accused  person  was  guilty  or  innocent.  How  many  pub- 
lic measures  and  principles  have  been  advocated  within 
these  twenty  years,  as  to  which  one  faction  has  honestly 
thought,  not  merely  that  the  general  expediency,  but 
that  the  direct  and  instant  tendency  to  disaffection  and 
insubordination,  lay  one  way,  and  another  faction  that 
it  lay  in  the  opposite  way.  If  it  depends  merely  on  the 
tendency  of  the  schemes,  principles,  or  language,  most 
ardent  party  men  are  necessarily  seditious  in  the  sight 
of  their  opponents.  But  the  law  interposes  between  all 
parties,  and  saves  every  man  against  whom  neither  cri- 
minality of  design,  nor  a  blameful  disregard  of  results, 
can  be  proved.  This  principle  gives  no  protection  to  the 
wilful,  though  conscientious  despiser  of  the  law ;  because 
his  case  includes  the  general  intention  to  violate  the  law, 
which  implies  wickedness  of  design. 

Accordingly,  I  know  nothing  that  is  more  unequiro- 
cally  laid  down  by  all  authorities,  or  more  deeply  im- 
plied in  all  sedition  trials,  than  that  the  guilt  of  sedition 
is  not  contracted,  where  the  intention, — in  the  sense  in 
which  I  use  this  expression, — was  innocent.  This,  as  I 
read  them,  is  the  doctrine  of  all  institutional  writers,  of 
all  courts,  and  of  all  public  prosecutors  since  the  Revo- 
lution. It  is  so  necessary  for  the  practical  exercise  of 
the  constitutional  privilege  of  free  discussion,  that  it  is 
one  of  the  principles  of  which  the  law  is  proud. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  113 

T  have  been  surprised  to  be  told,  that  this  principle  is     No.  e 

I'll  p  T-i      1        1        T  1     ^•  T         .    John  Grant 

not  recognised  in  the  law  oi  Jiingland.  I  believe  that  it  and  others, 
is.  And  I  believe  this  with  as  much  confidence  as  it  is  High  Court. 
ever  proper  to  feel  in  regard  to  anything  in  another  isis. ' 
legal  system,  and  that  is  contested.  There  is  no  subject  Conspiraty 
on  which  English  light  could  be  more  relevantly  bor-  ^  ^®'*'*'°"- 
rowed ;  and  therefore,  since  we  differ  about  the  law  of 
that  country,  I  wish  that  we  had  protected  ourselves 
by  taking  the  usual  course  for  having  it  ascertained. 
The  only  conclusion  that  I  can  form  without  this  aid,  is, 
there  can  be  no  sedition  there  without  some  direct  or 
indirect  guiltiness  of  intention.  Hence,  every  English 
indictment  for  this  offence  sets  forth  (as  I  understand) 
that  the  words  were  spoken  wickedly  and  maliciously ; 
or  charges  the  specific  fact  that  the  mischief  expressed 
by  them  was  intended.  Or,  they  are  sometimes  said  to 
have  been  used  seditiously, — which  includes  everything 
necessary  for  the  composition  of  the  offence,  and  among 
other  things  wickedness  of  design.  The  term  suggested 
by  the  Criminal  Law  Commissioners, — who,  I  respect  as 
most  sagacious  and  enlightened  expounders  both  of  what 
the  law  is,  and  of  what  it  ought  to  be,-^ — is  malicious. 
But  the  precise  term  is  immaterial.  In  one  way  or 
other  a  charge  of  criminal  design,  or  of  criminal  indiffer- 
ence, is  expressed  in  all  charges  for  sedition ;  and  I  sus- 
pect that  no  example  can  be  exhibited  of  judgment  fol- 
lowing on  any  verdict  which  excluded  this  quality. 

I  am  perfectly  aware  of  the  cases  and  passages  in 
which  it  is  said  that  the  use  of  words  of  a  dangerous 
tendency  is  sufficient ;  but,  I  think  that  these  authorities 
are  misunderstood.  All  that  I  understand  them  to 
mean  is,  that  atrocity  of  language  is,  of  itself,  competent 
evidence  of  the  intention,  or  of  the  wickedness  of  its 
user ;  and  that,  if  not  rebutted^  it  is  conclusive  evidence. 
This  I  agree  with.  But,  instead  of  implying  that  the 
intention  is  immaterial,  it  implies  exactly  the  reverse. 
It  implies  that  it  is  material,  but  that  it  may  be  estab- 

H 


&  Sedition. 


114  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    lished  by  a  particular  sort  of  proof.    All  the  length  that 
fndotos.  Chief- Justice  Best  goes,  in  the  case  of  Burdett,  is,_that 
HighCourt. '  It  is  enough  if  it  (the  criminal  intention)  be  highly 
^1848*"   '  probable ;  particularly  if  the  opposite  party  has  it  in 
conspiracy  '  his  power  to  rcbut  it  by  evidence,  yet  offers  none ;  for 
then  we  have  something  like  an  admission  that  the 
'  presumption  is  just.'     Mr  Justice  Bayley  says,  in  Har- 
vey's case,  '  I  take  the  law  to  be,  that  where  a  particu- 
'  lar  consequence  necessarily  results  from  any  act,  the 
' ,  party  doing  that  act  is  to  be  held,  prima  facie,  as  in- 
'  tending  the  necessary  consequences  of  that  act.'     No 
doubt.     But  still  (in  the  first  place)  this  only  means 
that  the  act,  if  unexplained,  is  good  evidence  of  the  in- 
tention ;  and  (in  the  second  place),  this  is  a  presumption 
to  be  judged  of  hy  the  jury.     If  the  intention  had  not 
been  deemed  a  part  of  the  offence,  what  occasion  had 
these  learned  persons  to  speak  of  it  ?     They  had  simply 
to  say  that  the  dangerousness  of  the  language  being  as- 
certained, the  enquiry  was  over.     I  should  like  to  see 
what  an  English  court  ever  did  with  a  case  where  the 
jury,  after  condemning  the  words,  instead  of  drawing 
the  inference  of  guilty  intention,  acquitted  the  prisoner 
of  this  part  of  the  charge. 

However,  I  do  not  believe  that  any  of  us  are  safe  in 
groping  oiu-  own  way,  by  our  own  threads,  through  the 
intricacies  of  any  foreign  system.  We  are  more  in  the 
open  air  with  oiu*  own  law.  As  to  which,  had  it  not 
been  for  the  state  ol  the  court  on  the  present  occasion, 
I  should  not  have  had  the  very  shadow  of  a  doubt. 

In  considering  the  punishment  that  ought  to  be  in- 
flicted on  Joseph  Gerald,  in  1794,  two  Judges  take  occa- 
sion to  dispose  of  the  alleged  purity  of  his  intentions. 
One  of  their  Lordships  says,  that  perfect  innocence  of  in- 
tention is  not  a  ground  even  for  mitigation  of  punishment ; 
and  the  others  goes  the  length  of  holding  this  circum- 
stance as  a  positive  aggravation.  These  are  the  only  two 
passages  in  the  legal  proceedings  of  Scotland  that  I  am 
waare  of,  where  intention  has  been  struck  out  as  an 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  115 

element  of  sedition.     I  do  not  suppose  that  they  will  be    No.  6. 

.     ,  .  -  .  ^^  "^  John  Grant 

copied  m  modern  times.  and  others. 

Baron  Hume  was  engaged,  I  believe,  in  the  composi-  High  Court- 
tion  of  his  work  while  these  old  proceedings  were  going  on.     "sis. ' 
But  instead  of  seeing  anything  of  this  kind  in  them,  the  conspiracy 
principle  which  he  extracts  from  them  is,  that  it  requires  *  ^^^'*"'°' 
a  combination  of  intention  with  tendency  to  constitute 
the  offence.     '  The  offence  reaches  all  the  practices,  &c. 
'  which  are  suited  and  intended  to  disturb  the  tranquillity 
'  of  the  state.'     These  are  the  deliberate  words  of  a 
cautious  writer,  giving  to  posterity  the  lesson  furnished 
by  recent  proceedings,  and  I  see  no  abandonment,  or 
abatement,  of  the  doctrine  in  any  other  part  of  his  Com- 
mentaries. 

Burnet  was  professionally  engaged  for  the  prosecution 
in  almost  all  these  cases,  and  all  his  feelings  were  on 
that  side.  Yet,  when  he  comes  to  describe  them  as  an 
institutional  instructor,  he  too  holds  them  to  import 
evil  intention  as  indispensable.  After  giving  examples 
of  seditious  words,  he  adds,  that  they  are  seditious,  '  If 
'  such  invectives  are  uttered  and  published  in  such  a 
'  form  as  is  calculated  to  excite  the  people  to  violence 
'  and  tumult,  and  proceed  obviously  from  that  intent.'' 

In  the  case  of  Baird  and  Maclaren,  bad  intention  was 
not  charged  by  the  use  of  this  expression ;  nevertheless, 
the  words  were  said  to  have  been  employed  wickedly, 
and  the  Lord  Justice-Clerh  (Boyle)  instructed  the  Jury 
that  '  criminal  intent  is  of  the  very  essence  of  the  crime.' 
I  do  not  rely  merely  on  these  detached  expressions,  but 
on  the  whole  scope,  and  object,  and  spirit  of  the  charge. 
It  relates  to  little  else  than  to  the  sufficiency  or  insuf- 
ficiency of  the  evidence  of  the  moral  criminality  of  the 
accused. 

I  cannot  abandon  authorities  so  express,  and  that  co- 
incide so  correctly  with  the  general  principle.  But  I 
rest  less  even  on  these  authorities  than  on  the  undeyiating 
authority  of  our  libels.  I  have  not  observed  a  single  one 
where  wickedness  of  mind  in  the  accused  has  not  been 


116  CASES  BEFORE  THE  HIGH  COURT 

No.  6.  charged.  No  matter  how  it  is  meant  to  be  proved,  it  has 
and  Others,  always  heeo-charged.  No  doubt  the  charges  have  not  always 
High  Court,  been  made  in  oneway ;  nor  is  this  necessary.  It  has  some- 

1848. '  times  been  made  by  setting  forth  that  the  language  '  was 
Conspiracy.  Calculated  and  '  intended'  to  effect  a  certain  species  of  mis- 
&  Sedition  gjjjg£     ^j.  Q|.jjgj.  ^jj^gg  j^  jjg^g  ijegjj  jjiade  by  saying  it  was 

done,  wickedly  and  feloniously.'  But,  whatever  the  form 
has  been,  my  statement  after  all  I  have  heard  to-day,  is, 
that  not  one  sustained  indictment  has  been,  or  can  he,  refer- 
red to,  where  nothing  was  charged  beyond  the  bare  fact  that 
dangerous  words  were  published.  It  seems  to  be  thought 
that  the  imputation  of  its  being  wickedly  and  feloniously 
meant  is  immaterial ;  and  this  merely  because  it  is  com- 
mon. These  are  called  words  of  style.  And  so  they  are ; 
just  because  they  are  so  necessary  that  they  are  never 
omitted.  I  cannot  hold  words  in  a  criminal  charge  to 
have  no  meaning. 

Accordingly,  what  is  it  that  the  greater  part  of  all  trials 
for  sedition  are  about  ?  According  to  the  prosecutor's 
view,  most  of  them  ought  to  be  at  an  end  as  soon  as  the 
import  of  the  words  is  settled.  But  the  struggle  of 
almost  all  such  trials  is,  to  establish,  or  to  refiite,  the 
imputation  of  the  prisoner's  guilty  mind,  as  a  thing  not 
necessarily  involved  in  the  mere  tendency  of  his  act.  If 
what  I  have  heard  in  this  discussion  be  sound,  nearly  the 
whole  evidence,  the  whole  labour,  and  the  whole  elo- 
quence of  such  proceedings  might  have  been  saved,  and 
indeed  of  this  very  case. 

But  really  the  whole  of  this  discussion  is  superseded 
by  the  special  terms  of  the  particular  libel  before  us. 
Whatever  it  might  have  done  withouit,  it  does  contain 
not  only  the  general  cliarge  of  wickedness,  but  a  specifi- 
cation of  what  the  wickedness  consisted  in,  viz.  an  inten- 
tion to  produce  disaffection  and  disorder.  This  is  the 
case  that  these  prisoners  were  warned  to  meet.  This, 
alone,  is  the  accusation  that  was  found  relevant.  The 
use  of  these  words  shows  what  the  prosecutor  understood 
to  be  necessary.     And  certainly  the  intentioa  thus  in- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  117 

troduced,  as  descriptive  of  what  the  general  imputation     No^^. 
of  wickedness  meant,  into  the  libel,  was  not  left  out  of  and  others, 
the  trial.     I  was  not  present ;  but  the  communication  HighComt. 
between  the  Court  and  the  Jury  implies  that  the  inten-     i848. " 
tion  had  been  discussed,  and  was  meant  to  be  dealt  with  Conspiracy 
by  the  assize  as  a  matter  of  relevancy  and  importance. 
Yet  the  substance  of  the  prosecutor's  argument  now  is, 
that  this  was  entirely  immaterial,  and  need  not  have 
been  in  the  case  at  all. 

If  it  be  true  that  wickedness,  particularly  of  intention, 
is  no  necessary  part  of  the  legal  crime,  then  it  must  be 
true  that  an  indictment,  or  a  verdict,  may  be  good,  though 
this  part  of  the  charge  or  of  the  conviction  be  left  out. 
Anything  may  be  omitted  that  is  useless.  And,  if  it  may 
be  omitted  at  all,  it  may  be  omitted  purposely  and  openly. 
Now,  suppose  an  indictment  to  set  forth,  or  a  verdict  to 
find,  or  a  prisoner  to  plead,  that  the  publication  was  cal- 
culated to  provoke  disaffection,  but  that  he  did  not  mean 
this,  and  that  this  being  the  only  criminal  object  charged, 
he  had  no  criminal  feeling  whatever.  I  do  not  believe 
that  such  an  indictment,  or  verdict,  or  plea,  would  be 
thought  sufficient. 

Assuming,  therefore,  that  guiltiness,  and  in  this  case 
guiltinesss  of  intention,  is  essential  to  the  offence,  and 
that,  though  proveable  by  the  mere  force  of  the  words, 
it  is  the  Jury  that  must  find  it  proved,  the  question  is, 
whether  they  have  done  so  here.  This  brings  us  to  the 
construction  of  the  verdict. 

No  verdict  ought  ever  to  be  strained  in  order  to  give 
it  a  meaning  which  it  does  not  plainly  express ;  least  of 
all  should  it  ever  be  strained  against  a  prisoner.  On 
the  contrary,  every  possible  benefit  ought  to  be  given  to 
a  prisoner  that  the  words  admit  of.  In  particular, 
wherever  a  circumstance,  essential  for  his  conviction,  is 
not  found,  he  is  entitled  to  have  the  verdict  considered 
as  a  verdict  of  acquital. 

The  verdict  before  us  does  not  find  the  prisoners 
simply  guilty ;  nor  guilty  as  libelled ;  nor  guilty  simply  of 


118  CASES  BEFORE  THE  HIGH  COURT 

No.  6.    sedition.     Any  of  these  would  have  done,  because  under 

and  others,  these  general  terms  would  have  been  included  whatever 

High  Court,  was  in  the  charges.     The  words  'guilty  of  sedition^  no 

18*48. '   doubt,  are  in  the  verdict ;  and  a  great  portion  of  the 

Conspiracy  rcasoning  I  have  heard  seems  to  me  to  imply  that  no 

&  Sedition,  ot^gj.  ^yords  are  to  be  cared  for.   But  I  cannot  stop  there. 

Because  the  finding  of  guilty  of  sedition  is  connected 

with  an  explanation,  or  rather  with  a  limitation ;  and  I 

must  take  this  into  view  also. 

The  prisoners  were  not  charged  with  the  abstract  use 
of  improper  language.  They  were  charged  with  using 
this  language  wickedly ;  and  the  species  of  wickedness 
was  described  as  consisting  of  an  intention  to  produce 
the  mischief  for  which  the  words  were  calculated.  Now, 
the  jury  find  them  guilty  of  the  abstract  fact  but  not  of 
the  guilty  quality.  They  find  each  guilty  of  sedition, 
'  In  so  far  as  that  he  used  language  calculated  to  ex- 
'  cite  popular  dissaffection  and  resistance  to  lawful  au- 
'  thority.'  A  lunatic  might  have  done  this.  As  I  read 
this,  it  means,  when  legally  construed,  that  they  are  ac- 
quitted of  everything  else,  particularly  of  all  malus  ani- 
mus. They  are  guilty  in  so  far.  In  so  far  as  what  ? 
As  that  they  used  words  of  a  specified  tendency.  This  is 
not  a  virtual,  but  a  positive  exclusion  of  everything 
charged,  but  not  found ;  and  among  other  things,  it  is 
an  exclusion  not  only  of  the  wicked  intention  with  which 
the  words  were  connected  in  the  accusation  ;  but  of  all 
the  other  guilt,  if  there  be  any,  in  the  indictment.  It 
does  not  appear  to  me  that  the  verdict  would  have  been 
at  all  more  favourable  for  the  prisoners  if  it  had,  in  ex- 
press terms,  found  the  prisoners  not  guilty  of  those  parts 
of  the  libel  which  imputed  wickedness  or  intended  mis- 
chief to  them.  It  is  in  vain  to  refer  to  the  words  as 
proving  the  guilt,  because  admitting,  as  I  do,  both  the 
competency  and  the  sufficiency  of  this  proof,  it  was  the 
province  of  the  juj-y  alone  to  apply  it,  and  this  they  have 
not  done.  We  have  no  right  to  speculate  about  their 
probable  meaning.     I  think  I  can  ascribe  the  first  part 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  IIQ 

of  tlieir  verdict  to  a  rational  ground  enough,  consistent-  jo^°|j^t 
ly  with  an ,  intention  in  the  second  part  to  acquit  the  and  others. 
prisoners.  But  if  they  really  meant  to  convict,  I  have  High  Court, 
great  difficulty  in  conceiving  how  they  could  limit  the     i848. 


conviction  to  the  bare  use  of  the  words.  Looking  there-  Conspiracy 
fore  at  the  terms  of  the  verdict,  I  hold  it  to  contain  a 
finding  of  guilty  of  sedition, — with  a  limitation  which,  in 
l&w,  makes  no  sedition.  It  seems  to  come  very  near  the 
celebrated  English  case,  where  the  jury  were  satisfied 
that  the  words  had  been  published  (no  matter  whether 
by  speaking  or  by  printing),  but  were  not  satisfied  about 
anything  else,  and  therefore  found  the  prisoner  guilty 
'  oipvblishing  only?  No  sentence  followed  on  this  ver- 
dict. The  correct  translation  of  the  present  verdict  is, 
'  Find  the  prisoners  guilty  of  whatever  sedition  there  is 
'  in  the  mere  use  of  dangerous  language,  but  acquit  them 
'  of  personal  blame.'  In  short,  we  condemn  the  language, 
but  not  the  men ;  at  least,  whatever  we  may  think  of 
their  intemperance,  we  do  not  think  them  seditious,  un- 
less the  mere  uttering  of  the  words  constitutes  sedition.  The 
bare  utterance  might,  as  evidence,  have  warranted  the 
Jury  in  inferring  malm  animus ;  but  they  not  having  in- 
ferred this,  but  having  restricted  their  finding  to  the 
abstract  fact  of  the  use  of  the  words,  the  Court  has  no 
right  to  make  the  inference  for  them. 

But  we  are  not  now  entitled  to  confine  our  attention 
merely  to  the  terms  of  the  verdict.  Whether  the  com- 
munication that  took  place  between,  the  Jury  and  the 
Court  ought  io  have  been  introduced  as  connected  with 
the  verdict,  I  do  not  say.  But  it  was  introduced ;  au- 
thoritatively, on  the  motion  of  the  prisoner,  and  without 
objection  by  the  Prosecutor.  Its  import  was  that,  on 
its  being  put  to  them,  the  Jury  stated  that  they  unani- 
mously meant  to  leave  "the  word  intended  out  of  their 
verdict.  I  hold  the  meaning  of  this  to  be,  that  they 
meant  to  acquit ;  or  not  to  convict,  of  wickedness  of 
intention. 

Now,  what  is  the  substance  of  the  prosecutor's  claim  ? 


120  CASES  BEFORE  THE  HIGH  COURT 

t  ^°n^'  .  It  is,  that  wickedness  of  intention  is  to  be  inferred  from 

John  Grant  • 

and  Others,  the  use  of  the  language ;  and  that,  therefore,  though  the 
High  Court.  Jury  has  not  only  not  drawn,  but  has  unanimously  dis- 
1848. '   claimed  the  inference,  still  this  very  inference  is  to  be  ex- 
Conspiracy  tractcd,  by  ingcnious  interpretation,  out  of  the  very  words 
" '  '""■  by  which  the  disclamation  was  followed.  I  do  not  presume 
to  dictate,  or  to  suggest,  to  any  one  else ;  but,  for  my- 
self, I  must  say  that  I  recoil  from  this  construction.     I 
could  not  go  into  it  without  a  consciousness  that  I  was 
absolutely  reversing  what  it   was  judicially  explained 
that  the  Jury  intended.    It  is  this  feeling  that  makes  the 
whole  discussion  to  me  so  painful.     I  think  that  we  are 
not  giving  effect  to  that  of  which  the  Jury  unquestion- 
ably meant  to  acquit ;  and  that  we  abstain  from  doing 
so,  by  an  interpretation,  which  is  at  the  least  not  neces- 
sary, of  the  very  words  which  the  Court  took  from  the 
Jury  as  consistent  with  that  acquittal. 

It  may  possibly  result  in  there  having  been  a  miscar- 
riage at  the  trial.  But  this  is  a  misfortune  of  which 
the  prisoners  are  entitled  to  the  benefit. 

LoBD  Wood. — ^The  opinion  I  had  formed,*  upon  con- 
sidering the  argument  which  was  submitted  to  us,  and 
the  authorities  cited,  was-^that  the  verdict  is  good ;  and 
I  am  confirmed  in  it  by  those  delivered  by  your  Lord- 
ships, who  have  taken  the  same  view. 

After  the  whole  subject  has  been  so  fully  exhausted, 
it  could  serve  no  purposCj  and  indeed  would  only  be  a 
useless  consumption  of  time  to  go  over  it  again  in  detail. 
I  shall  therefore  only  say,  that  when  I  consider  the  charge 
of  sedition  in  the  indictment,  which  is  now  alone  in  ques- 
tion,-'— the  manner  in  which  it  is  there  laid,  all  the  acts 
and  conduct  libelled  being  averred  to  have  been  done  and 
uttered  seditiously, — and  the  law  and  practice  relative  to 
the  offence,  and  to  the  form  and  style  of  the  libel,  of 
which  there  are  numerous  instances  where  no  special  in- 
tention is  set  forth, — and  when,  "with  reference  to  these 
things,  I  read  the  verdict  as  it  stands — but  giving,  at  the 
same  time  the  utmost  effect  to  which,  as  I  think,  the  ex- 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  121 

planation  accompanyinar  it  is  entitled,  and  after  which     No-  s. 
explanation  the  verdict  as  it  is  worded  was  deliberately  and  others. 
adhered  to, — I  am  of  opinion  that  it  is  a  good  and  unob-  High  Court. 
jectionable  verdict  of  guilty  of  sedition ;  that  is,  guilty  of    isis. ' 
the  acts  of  sedition  libelled,  to  the  extent  mentioned  in  Conspiracy 
the  verdict,  although  the  verdict  omits  to  find  a  part  of 
what  is  libelled,  viz.,  the  special  intention  libelled,  which, 
I  apprehend,  has  only  an  intensive  meaning,  and  is  laid 
merely  as  descriptive  of  one  specific  quality  of  the  crime 
charged,  but  not  as  an  essential  element  in  the  crime, 
which  by  law  it  does  not  require  to  be,  and  which  spe- 
cific intention,  therefore,  it  was  not  necessary  to  establish 
by  proof,  or  consequently  to  have  found  by  the  verdict  of 
the  jury,  in  order  to  render  the  verdict  suflScient  to  war- 
rant a  sentence  being  competently  and  effectually  passed 
upon  it. 

Thereafter  Lords  Mackenzie,  Cockburn,  and  Wood, 
withdrew,  leaving  the  Lords  Justice-Clerk,  Moncreiff, 
and  Medwyn,  before  whom  the  case  had  been  tried,  to 
pronounce  sentence. 

Lord  Moncreiff. — My  Lords,  I  am  happy  to  have  it 
to  Siay,  that,  having  sat  on  this  Criminal  Bench  for  nine- 
teen years,  I  have  not  been  called  on  to  take  any  part  in 
a  trial  of  sedition  until  this  time.  But  the  case  has  oc- 
curred now ;  and  it  is  impossible,  in  the  circumstances 
under  which  this  indictment  was  framed,  not  to  see  that 
there  was  an  absolute  necessity  laid  on  the  authorities  to 
bring  the  matter  under  the  consideration  of  the  Court, 
considering  that  the  indictment  contained  very  serious 
charges  against  the  prisoners.  The  charge  of  conspiracy, 
in  the  terms  libelled,  is  of  a  very  serious  character.  It 
has,  however,  fortunately  for  the  prisoners  at  the  bar,  ac- 
cording to  the  view  of  the  case  I  take,  turned  out  that 
the  charge  of  conspiracy  has  not  been  proved  against 
them  ;  and,  that  being  the  case,  it  is  laid  aside.  But  we 
come  to  the  charge  of  sedition  ;  and  the  Jury  have  found 
the  prisoners  guilty  of  sedition  in  the  particular  terms 


122  CASES  BEFORE  THE  HIGH  COURT 

John  Gr'  ®^PJ"^ssed  in  their  verdict.  No  doubt,  unquestionably, 
and  Others,  the  finding  them  guilty  of  that  charge  of  sedition,  even 
H^s'' Court,  in  the  modified  terms  in  which  it  appears,  implies  a  cer- 
1848.  tain  criminal  intention,  the  intention  of  speaking  these 
Conspiracy  words,  which,  in  the  opinion  of  the  Court  and  the  Jury, 

&  Sedition.  . 

are  seditious  ;  and,  without  going  into  any  of  the  particu- 
lars, I  must  say,  that  it  is  impossible  for  any  man  to  read, 
these  speeches,  and  particularly  to  read  the  whole  of  them 
as  given  to  the  Jury,  it  is  impossible,  I  say,  for  any  man 
of  sober  and  calm  mind,  looking  to  the  interests  of  the 
country,  not  to  see  that  they  are  seditious  in  the  charac- 
ter which  the  Jury  have  given  them,  namely,  that  they 
were  calculated  to  excite  popular  disaffection  to  the  Go- 
vernment, and  to  excite  resistance  to  the  lawful  autho- 
rities. If  they  had  any  meaning  at  all,  they  have  that 
meaning  and  import.  I  am  not  speaking  of  the  inten- 
tion of  the  parties,  but  certainly  they  have  that  character 
and  import,  as  has  been  found  by  the  Jury.  It  would  be 
a  sad  matter  indeed,  if  the  delivery  of  such  speeches,  in 
Ifirge  assemblies  of  persons,  one  of  these  assemblies  in  a 
room  consisting  of  six,  seven,  or  eight  hundred  persons, 
and  another  in  the  open  field  of  Bruntsfield  Links,  where 
some  thousands  were  present,  were  to  be  allowed,  where 
the  language  of  these  speeches  was  of  dangerous  tendency 
to  the  best  interests  of  the  country.  I  will  not  allow 
myself  to  enter  into. the  matter  on  which  these  speeches 
are  founded,  nor  to  enter  into  the  views  of  these  prison- 
ers, or  of  the  Association  to  which  they  belonged ;  but  I 
will  only  say,  if  these  views  were  to  be  accomplished  in 
the  manner  the  speakers  seem  to  suggest,  they  were  of 
the  most  dangerous  character  for  the  best  interests  of  this 
country.  But  when  I  say  this,  I  have  to  say,  that  it  is 
with  great  pain  that  I  am  called  upon  to  propose  sen- 
tence in  the  case.  I  wish  I  could  have  been  saved  this 
pain.  Undoubtedly  it  is  very  painful  to  move  a  sentence 
against  such  persons  as  the  pannels  at  the  Bar,  who  ap- 
pear in  other  respects  to  have  been  respectable  individu- 
als.    But  we  must  discharge  our  duty  to  the  country. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  123 

The  law  must  be  put  in  force :  and  the  Court  cannot     No.  e. 

John  Grant 

permit  such  things  to  go  on  without  punishment ;  and  and  otherB. 
when  the  Jury  have  found  the  prisoners  guilty  of  sedi-  Highcourt. 
tious  speeches,  it  is  the  duty  of  the  Court  to  pronounce     ms.  ' 
such  a  sentence  as  to  shew  to  others  that  similar  prac-  conspiracy 
tices  cannot  be  permitted  with  impunity. 

It  is  a  great  consolation  for  me  to  think,  that  now,  as 
the  case  stands  before  us,  it  is  undoubtedly  a  very  miti- 
gated case  of  sedition.  I  give  all  weight  to  the  judgment 
of  the  Jury  in  disavowing  the  intentions  of  the  parties, 
namely,  that  their  speeches  were  intended  to  produce 
what  is  stated  in  the  libel.  I  take  all  this  into  conside- 
ration ;  and  I  take  into  consideration  the  finding  of  the 
Jury,  that  the  serious  charge  of  conspiracy  is  out  of  the 
case.  We  are  called  upon,  therefore,  to  consider  what 
sentence  we  ought  to  pronounce,  with  all  possible  leniency 
to  the  prisoners ;  and  the  sentence  which  I  have  to  pro- 
propose  cannot  be  thought  by  any  portion  of  the  com- 
munity to  be  a  severe  punishment  in  such  a  case ;  and  I 
am  willing  to  believe  that  it  must  appear  to  every  person 
of  sober  understanding,  to  be  as  lenient  as  the  Court  can 
pronounce.  The  sentence  which  I  propose  is,  imprison- 
ment for  each  of  the  prisoners  for  a  period  of  Four  Ca- 
lendar Months. 

Lord  Medwyn. — I  concur  in  the  proposition  of  my 
Lord  Moncreiif. 

The  Lord  Justice-Clerk. — Henry  Ranken  and  Ro- 
bert Hamilton,  if,  after  the  period  of  reflection  which  you 
have  had,  you  entertain  and  cherish  the  sentiments  and 
opinions  which  have  been  proved  in  evidence  to  have 
been  delivered  by  you,  it  would  be  unnecessary  for  me  to 
say  one  word  more  in  pronouncing  the  sentence  of  the 
Court,  than  this,  that  the  object  of  the  punishment  is  to 
deter  you  and  others  from  committing  a  like  offence  in 
time  to  come.  I  have  to  say,  that  in  regard  to  you,  in 
particular,  the  repetition  of  a  similar  offence,  after  punish- 
ment has  been  once  inflicted  by  this  Court,  must  operate 
most  prejudicially  against  you  in  the  event  of  further 


124 


CASES  BEFORE  THE  HIGH  COURT 


jota°Graiit  conviction.  But  I  would  fain  hope  and  trust,  and  I  ex- 
and  Others,  prggs  it  with  sincerity,  that,  from  your  demeanour, — I 
^jshCourt.  iiave  gathered  it  in  one  way  or  another,  I  cannot  tell 
J  8^8.  how, — but  I  have  gathered  throughout  the  course  of  this 
Conspiracy  trial,  fpom  vour  whole  manner  and  demeanour,  that  it  is 

&  Sedition.  'J 

not  likely  that  you  will  again  rush  wantonly  and  reck- 
lessly into  the  use  of  such  language  as  you  did  upon  the 
occasions  libelled.  From  the  situation  which  I  hold,  I 
think  it  also  my  duty  to  say,  that  I  do  not  think  the 
authorities  of  this  place  interfered  one  day  too  soon  to 
prevent  and  stop  the  meetings  at  which  such  language 
had  been  openly  and  constantly  used. 

The  sentence  of  the  Court  is,  that  you,  Henry  Ranken 
and  Robert  Hamilton,  be  imprisoned  for  Four  Calendar 
Months. 


Nov.  20. 
1848. 


Present, 

The  Lord  Justicb-Clebk, 

Lords  Mackenzie  and  Medwyn. 

Her  Majesty's  Advocate. — Craufurd  A.D. — J.  M.  Bell  A.D. 


No.  7. 
James 
Pnrves. 

High  Conrt. 

Nov.  20. 

1848. 

Bigamy. 


James  Pcrves — W.  H.  Thomson. 

Bigamy — Relevancy — Proof. — Held,  1st,  That  in  an  indictment 
for  Bigamy,  it  is  sufiScient  in  a  question  of  relevancy  to  aver  that 
the  pannel  was  lawfully  married  to  the  first  wife,  although  the  cir- 
cumstances set  forth  in  the  libel  shew  that  such  marriage  must  have 
been  an  irregular  one.  2d,  That  the  proper  time  to  object  to  the 
validity  of  such  marriage,  is  on  the  proof,  if  it  be  shewn  that  in 
truth  the  marriage  is  open  to  challenge. 

James  Purves  was  charged  with  Bigamy  : 

In  so  far  as,  you  the  said  James  Purves  having,  on  the  18th  day 
of  August  1845,  or  on  one  or  other  of  the  days  of  that  month,  or  of 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  125 

July  immediately  preceding,  or  of  September  immediately  following,  No.  7. 
and  at  or  near  Paxton  Toll-bar,  in  the  parish  of  Hatton,  and  county  James 
of  Berwick,  been   lawfully  married  to  Margaret  Leith,  daughter  of. 


and  then  and  now  or  lately  residing  with,  Elizabeth  Laing  or  Leith,  a  Jf  o'er*' 
widow,  now  or  lately  residing  in  or  near  Narrow  Lane  of  Berwick-  1848. 
upon-Tweed,  a  form  or  ceremony  of  marriage  having,  then  and  there.  Bigamy 
been  performed  by  Henry  Collins,  designing  himself  celebrator  of 
marriages  in  Scotland,  and  you  and  the  said  Margaret  Leith  having, 
then  and  there,  mutually  accepted  each  other  as  spouses,  in  presence 
of  the  said  Henry  Collins  and  witnesses,  and  you  having  lived  and  co- 
habited with  the  said  Margaret  Leith  as  your  lawful  wife,  you  the  said 
James  Pufves  did,  on  the  14th  September  1848,  or  on  one  or  other  of 
the  days  of  that  month,  or  of  August  immediately  preceding,  or  of 
October  immediately  following,  within  or  near  the  public-house  or 
tavern,  situated  at  or  near  Lamberton  Toll,  in  the  parish  of  Morning- 
ton,  and  county  of  Berwick,  wickedly  and  feloniously  enter  into  an 
irregular  matrimonial  connection  with  Catherine  Fyfe,  daughter  of, 
and  now  or  lately  residing  with,  Ann  Matthew  or  Fyfe,  a  widow,  now 
or  lately  residing  in  Haddington,  a  form  or  ceremony  of  marriage 
having  been,  then  and  there,  performed  by  Robert  Luggate,  designing 
himself  celebrator  of  border  marriages,  then  and  now  or  lately  residing 
in  or  near  Berwick-upon-Tweed,  and  you  and  the  said  Catherine  Fyfe 
having,  then  and  there,  accepted  of  each  other  as  spouses,  in  presence- 
of  the  said  Robert  Luggate  and  witnesses,  and  you  did  afterwards  co-, 
habit  with  the  said  Catherine  Fyfe  as  your  wife :  And  further,  you 
the  said  James  Purves  did,  on  the  18th  day  of  September  1848,  or  on 
one  or  other  of  the  days  of  that  month,  or  of  August  immediately  pre- 
ceding, or  of  October  immediately  following,  and  within  or  near  the 
house  iu  or  near  Haddington,  then  and  now  or  lately  occupied  by  the 
said  Ann  Matthew  or  Fyfe,  enter  into  a  matrimonial  connection  with 
the  said  Catherine  Fyfe,  after  proclamation  of  banns,  the  marriaga 
ceremony  having,  then  and  there,  been  performed  by  the  Reverend 
"William  Hogg,  then  and  now  or  lately  minister  of  the  West  Congre- 
gation, Haddington,  in  connection  with  the  United  Presbyterian 
Church,  and  residing  in  or  near  Haddington,  and  you  did  thereafter 
live  and  cohabit  with  the  said  Catherine  Fyfe  as  your  wife  ,•  and  this- 
you  did,  you  well  knowing  that  the  said  Margaret  Leith,  your  wife, 
was  still  alive,  and  your  said  marriage  with  her  still  subsisting. 

W.  H.  Thomson  objected  to  the  relevancy  of  the  in- 
dictment. The  first  marriage  libelled,  was  plainly  an 
irregular  one,  celebrated  at  a  toll-bar,  by  a  person  not 
entitled  to  marry.  The  second  was  also  an  irregular 
one.  Hume,  vol.  i.  p.  469,  expressed  great  doubts  of 
the  relevancy  of  a  charge  of  Bigamy  under  such  circum- 


126  CASES  BEFORE  THE  HIGH  COURT 

No.  7.    stances,  and  his  authority  had  been  adopted  in  the  case 
Purves.   oi  Armstrong,  High  Court,  July  15. 1844,  Broun,  vol.  ii. 
High  Court,  p.  257.     Bell's  Notes,  p.  112.     There  was  no  authority 
1848. '  to  show  that  this  indictment  was  relevant. 
Bigamy.       The  LoRD  Justice-Cleek. — The  Court  have  not  the 
slightest  difficulty  in  sustaining  the  relevancy  of  this 
indictment.     As  observed,  in  the  case  of  Brown,  High 
Court,  Dec.  24.   1846,  Arkley,  p.  205,  which  was  the 
last  case  on  the  subject,  the  allegation  in  the  indictment 
that  the  pannel  was  lawfully  married,  is  quite  sufficient 
in  a  question  of  relevancy.     No  doubt  the  Public  Prose- 
cutor must  establish  by  evidence  a  lawful  marriage,  and 
it  will  be  open  to  the  prisoner  to  redargue  that  evidence 
if  he  can.     But  at  present  we  are  quite  clear,  that  the 
principle  laid  down  in  the  case  of  Brown  is  the  correct 
one,  and  that  this  objection  must  be  repelled. 

A  variety  of  evidence  was  led,  conclusively  establish- 
ing both  marriages,  under  circumstances  of  considerable 
aggravation ;  and  the  Jury  having  unanimously  found 
the  prisoner  guilty, — 

LoED  Mackenzie,  in  proposing  sentence,  said — That  in 
respect  of  the  aggravated  circumstances  of  the  case,  he 
could  not  propose  a  less  sentence  than  that  of  transpor- 
tation. It  was  no  doubt  a  very  unusual  one  for  the 
offence  of  bigamy,  but  he  thought  it  fully  warranted  in 
the  case  before  them. 

The  other  Judges  concurring,  the  said  James  Purves, 
was  accordingly  sentenced  to  be  transported  for  the 
period  of  seven  years. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  127 


Present, 
The  Lord  Justice-Clerk.  Nov.  27. 

1848. 

Lords  Moncreipp  and  Cockbhrn. 
Her  Majesty's  Advocate — Sol.-Gen.  Maitland — Craufurd  A.D. 


Alexander  Matson — Larimer . 

Relevancv. — Circumstances  in  which  the  Public  Prosecutor  was  held 
entitled  to  libel  inconsistent  modes  of  death  in  a  charge  of  Murder. 

Alexander  Matson,  was  charsred  with  Murder :  ,  n°-  s- 

°  Alexander 

Matson. 


In  so  far  as,  on  one  or  other  of  the  days  between  the  26th  and  High  Court 
30th  days  of  May  1848,  both  inclusive,  the  particular  day  being  to    Nov.  27. 

the  prosecutor  unknown,  or  on  one  or  other  of  the  days  of  said  mouth, 1__ 

or  of  April  immediately  preceding,  or  of  June  immediately  following,  Murder, 
and  within  or  near  the  house  in  or  near  Hillhousefield,  North  Leith, 
in  the  county  of  Edinburgh,  then  and  now  or  lately  occupied  by  yon, 
or  at  or  near  that  part  of  the  beach  or  shore,  at  or  near  Grinton 
Quarry,  situated  to  the  west  of  the  Pier  of  Granton,  in  the  county 
of  Edinburgh,  or  at  some  place  or  places  between  your  said  house 
and  the  said  part  of  said  beach  or  shore,  at  or  near  Granton 
Quarry  aforesaid,  at  some  place  in  or  near  Leith,  or  in  or  near  the 
city  of  Edinburgh,  the  particular  place  being  to  the  prosecutor  un- 
known, you  the  said  Alexander  Matson  did,  wickedly  and  feloniously, 
attack  and  assault  John  Matson  your  son,  or  reputed  son,  a  child  aged 
two  years  or  thereby,  and  you  did,  with  a  hammer,  or  some  other  in- 
strument to  the  prosecutor  unknown,  or  with  your  fists,  strike  the 
said  John  Matson,  one  or  more  violent  blows  on  the  head,  or  other 
part  or  parts  of  his  person,  or  you  did  kick  him  on  the  head  with  your 
feet,  or  you  did  seize  hold  of  the  said  child,  and  did  dash  his  head 
against  a  stone  or  the  ground  or  some  other  hard  substance,  or  you  did, 
at  or  near  Granton  Quarry  aforesaid,  throw  the  said  John  Matson,  or 
cause  him  to  be  thrown,  into  the  sea,  and  did  leave  him  therein,  by  all 
which  or  part  thereof,  or  by  some  other  means  to  the  prosecutor  un- 
known, the  said  John  Matson  was  by  you  mortally  injured,  and  im- 
mediately or  soon  thereafter  died ;  and  was  thus  murdered  by  you 
the  said  Alexander  Matson. 

LoRiMEE,  for  the  pannel,  objected  to  the  relevancy  of 
the  indictment,  in  respect  that  an  undue  degree  of  lati- 
tude had  been  taken  in  libelling  the  mode  in  which  the 


128  CASES  BEFORE  THE  HIGH  COURT 

No.  8.    crime  was  said  to  have  been  committed.     Nothing  could 
Matson.   be  more  diverse,  or  require  more  distinct  lines  of  de- 
High  Court,  fence,  than  the  violence  ascribed  of  striking  with  a  ham- 
1848. "  mer,  and  the  drowning,  said  to  have  been  caused  by 
Murder,   throwing  into  the  sea.     This  was  contrary  to  the  autho- 
ties,  Hume,  vol.  ii.  p.  190.     It  was  not  pretended  that 
the  body  was  found  in  a  state  of  decay,  or  that  it  was 
otherwise  so  changed  that  the  mode  of  death  was  not 
discoverable,  so  as  to  bring  the  case  within  the  exceptions 
which  were  noticed  in  the  note  to  Hume,  vol.  ii.  p.  193. 
The  Solicitor-General,  on  the  part  of  the  Crown, 
urged,  that  he  had  libelled  with  as  much  precision  as 
the  circumstances  would  admit.     The  body  having  been 
found  in  the  sea,  bearing  marks  of  external  violence, 
which  might  have  been  sustained  either  before  or  after, 
or  at  the  time,  of  submersion,  it  was  impossible  for  him 
to  be  more  precise ;  and  he  was  entitled,  therefore,  to 
state  the  charge  so  broadly,  in  order  that  the  evidence 
might  support  the  libel. 

The  Court  held,  on  the  grounds  stated  by  the  Solici- 
tor-General, that  the  objection  must  be  repelled,  and 
observed,  that  the  degree  of  latitude  to  be  allowed  to 
the  Public  Prosecutor,  was  always  a  question  of  circum- 
stances to  be  determined  by  the  Court  in  each  case. 

The  pannel  pleaded  Not  Guilty ;  and  after  evidence 
on  both  sides,  the  Jury  returned  a  verdict  of  Not 
Proven. 

In  respect  of  which  verdict  of  assize,  the  said  Alexan- 
der Matson  was  assoilzied  simpliciter,  and  dismissed  from 
the  bar. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  129 

Present, 

The  Lord  Justice-Clerk, 

Dec.  i. 
Lords  Cockbukn  and  Wood.  '^**' 

Her  Majesty's  Advocate — Craufurd  A.D. — Beat  A.D. 

AGAIKST 

John  Thomson — Broun — Mackonockie. 

Evidence — Pboduction. — Circumstances  in  which  the  Court  refused 
to  allow  the  Jury  to  inspect  the  head  of  the  pannel,  in  support  of  a 
plea  of  insanity,  as  to  a  mark  said  to  have  been  occasioned  by  an 
injury,  it  not  having  been  previously  shewn  in  evidence  that  this 
mark  was  there  before  the  pannel  committed  the  act  for  which  he 
was  tried. 

John  Thomson,  auctioneer,  Greenock,  was  charged, —     joi,n" 

Thomson. 


That  albeit,  by  an  Act  passed  in  the  tenth  year  of  the  reign  of  "'S"™'*' 
His  late  Majesty  George  the  Fourth,  chapter  thirty-eight,  intituled      I848. 
'  An  Act  for  the  more  effectual  punishment  of  attempts  to  Murder  in  ~z      rrTT 
'  certain  cases  in  Scotland,'  it  is  enacted  by  section  second,  '  That  from  Geo.  IV. 
'  and  after  the  passing  of  this  Act,  if  any  person  shall,  within  Scotland,  *'■  °°* 
'  wilfully,  maliciously,  and  unlawfully,  shoot  at  any  of  His  Majesty's 
'  subjects,  or  shall,  wilfully,  maliciously,   and   unlawfully,  present, 
'  point,  or  level,  any  kind  of  loaded  fire-arms  at  any  of  His  Majesty's 
'  subjects,  and  attempt,  by  drawing  a  trigger,  or  in  any  other  manner, 
'  to  discharge  the  same  at  or  against  his  or  their  person  or  persons,  or 
'  shall,  wilfully,  maliciously,  and  unlawfully,  stab  or  cut  any  of  His 
'  Majesty's  subjects,  with  intent  in  so  doing,  or  by  means  thereof,  to 
'  murder  or  to  maim,  disfigure  or  disable,  such  His  Majesty's  subject  or 
'  subjects,  or  with  intent  to  do  some  other  grievous  bodily  harm  to  such 
'  His  Majesty's  subject  or  subjects,  or  shall,  wilfully,  maliciously,  and 
'  unlawfully,  administer  to,  or  cause  to  be  administered  to,  or  taken  by, 
'  any  of  His  Majesty's  subjects,  any  deadly  poison,  or  other  noxious 
'  and  destructive  substance  or  thing,  with  intent  thereby,  or  by  means 
'  thereof,  to  murder  or  disable  such  His  Majesty's  subject  or  subjects, 
'  or  with  intent  to  do  some  other  grievous  bodily  harm  to  such  His 
'  Majesty's  subject  or  subjects,  or  shall,  wilfully,  maliciously,  and  un- 
'  lawfully,  attempt  to  suffocate,  or  to  strangle,  or  to  drown,  any  of 
'  His  Majesty's  subject  or  subjects,  with  the  intent  thereby,  or  by 
'  means  thereof,  to  murder  or  disable  such  His  Majesty's  subject  or 


.38. 


130  CASES  BEFORE  THE  HIGH  COUKT 

No.  9.      '  subjects,  or  with  intent  to  do  some  other  grievous  bodily  harm  to  such 
JTohn       (  jjig  Majesty's  subject  or  subjects,  such  persons  so  offending,  and 

1  '  being  lawfully  found  guilty,  actor,  or  art  and  part,  of  any  one  or 

Dec'°4^  '  ™°''®  °^  ^^^  several  offences  hereinbefore  enumerated,  shall  be  held 
1848.  '  guilty  of  a  capital  crime,  and  shall  receive  sentence  of  death  accord- 
Con.  loth  '  ingly/  And  albeit,  by  the  laws  of  this  and  of  every  other  well- 
Geo.  IV.  governed  realm.  Assault,  especially  when  committed  by  shooting  at 
and  wounding  any  of  Her  Majesty's  subjects,  and  to  the  effusion  of 
blood,  the  serious  injury  of  the  person,  and  danger  of  life,  is  a  crime 
of  an  heinous  nature,  and  severely  punishable :  Yet  true  it  is  and 
OP  verity,  that  you  the  said  John  Thomson  are  guilty  of  the  statutory 
crime  of  shooting  above  libelled,  and  of  the  crime  of  assault  above 
libelled,  aggravated  as  aforesaid,  or  of  one  or  other  of  them,  actor,  or 
art  and  part:  In  so  far  as,  on  the  20th  day  of  July  1848,  or  on  one 
or  other  of  the  days  of  that  month,  or  of  June  immediately  preceding, 
or  of  August  immediately  following,  on  or  neai  Hamilton  Street,  in  or 
near  Greenock,  and  at  or  near  a  part  of  the  said  street  which  is  op- 
posite or  nearly  opposite  the  shop  situated  in  or  near  the  said  street, 
then  and  now  or  lately  occupied  by  William  M'llwraith,  then  and  now 
«r  lately  a  hosier  there,  and  then  and  now  or  lately  residing  in  or  near 
West  Stewart  Street,  in  or  near  Greenock,  you  the  said  John 
Thomson  did,  wickedly  and  feloniously,  attack  and  assault  John 
Kerr  Gray,  then  and  now  or  lately  town-clerk  of  Greenock,  and' 
then  and  now  or  lately  residing  in  or  near  Kilblain  Street,  in  or- 
near  Greenock,  and  did  present,  aim,  and  discharge,  at  the  said 
John  Kerr  Gray,  a  pistol  or  other  fire-arm  loaded  with  powder- 
and  ball,  or  loaded  with  powder  and  some  hard  and  lethal  substance- 
or  substances,  and  did,  wilfully,  maliciously,  and  unlawfully,  shoot  at 
the  said  John  Kerr  Gray  with  the  said  pistol  or  other  fire-arm  loaded 
as  aforesaid,  and  a  ball  or  some  other  hard  and  lethal  substance  or 
substances,  being  part  of  the  said  shot,  did  strike  and  wound  the  said 
John  Kerr  Gray  on  or  near  his  right  breast  or  right  side,  or  on  some 
-other  part  of  his  person,  whereby  he  was  severely  wounded,  to  the 
•effusion  of  his  blood,  the  serious  injury  of  his  person,  and  the  danger 
of  his  life ;  and  this  you  the  said  John  Thomson  did,  with  intent  in  so 
doing,  or  by  means  thereof,  to  murder  or  to  maim,  disfigure  or  disable, 
the  said  John  K«rr  Gray,  or  with  intent  to  do  him  some  other  grievous 
bodily  harm. 

The  prisoner  pleaded  insanity  as  a  special  defence. 

The  evidence  on  the  part  of  the  Crown  conclusively 
established  that  the  pannel  had  fired  at,  and  very 
dangerously  wounded  Gray,  as  charged,  and  also  went 
to  rebut  the  plea  of  insanity. 

The  prisoner  also  adduced  evidence  to  shew  that  he 


Geo.  IV, 
.:.  38. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  131 

was  subject   to   fits   of  derangement,   especially   after    No.  9. 
drinking,  and  also  that  this  had  been  especially  the  case  Thom»on. 
since  the  pannel  had  received  an  injury  on  the  head  in  High  Court, 
America  some  years  before.      None  of  the  witnesses,     i848.' 
liowever,  spoke  to  the  existence  of  any  mark  on  his  head  con.  10th 
prior  to  the  time  when  he  was  in  prison. 

Broun,  in  addressing  the  Jury,  on  behalf  of  the  pan- 
nel, proposed,  that  he  should  uncover  his  head,  in  order 
that  the  Jury  might  see  the  mark  which  was  said  to 

have  been  occasioned  by  the  injury  in  America,  spoken 
to  by  the  witnesses  in  exculpation. 

The  LoED  Justice-Clerk. — That  cannot  be  allowed. 

You  have  not  shewn  the  existence  of  any  such  mark 

prior  to  the  time  of  the  offence.     The  first  mention  we 

have  of  it  is  when  he  was  in  prison.     How  then  can  it 

be  exhibited  for  the  purpose  you  propose  ? 

Broun. — The  pannel  is  a  production,  and  as  such 

may  be  looked  at  by  the  Jury. 

The  Lord  Justice-Clerk. — Not  for  such  a  purpose 

and  in  such  a  way  as  you  propose.     You  should  have 

laid  a  foundation,  by  shewing  the  prior  existence  of  such 

a  mark,  if  you  intended  to  ask  us  to  allow  this. 

The  Jury  unanimously  found  the  pannel  guilty  of  the 

statutory  charge  as  libelled,  but  recommended  him  to 

mercy. 

In  respect  of  which  verdict  of  Assize,  the  said  John 
Thomson  was  sentenced  to  be  hanged  at  Greenock  on 
the  23d  December  1848.' 


^  The  sentence  was  afterwards  commuted  to  transportation  for  life. 


132  CASES  BEFORE  THE  HIGH  COURT 

Present, 
Dec.  i.  The  Lord  Justice-Clerk, 

1848. 

Lords  Moncreifp,  Medwyn,  and  Cockburn. 

Alexander  Mackean,  Suspender — A.  Carnegy  Ritchie^ 

Archibald  Wilson,  Respondent— iV«ai»«». 

Suspension. — Held,  1st,  that  it  is  not  necessary,  in  a  summary  case  in 
the  Police  Court,  that  the  pannel  should  have  served  upon  him  a  writ- 
ten copy  of  the  complaint  before  trial ;  and,  2d,  that  it  is  no  ground 
of  suspension  that  he  was  not  allowed  forty-eight  hours  to  prepare 
his  defence,  he  not  having  asked  delay  at  the  time. 

No.  10.        This  was  a  suspension  of  a  sentence  pronounced  by 

^^wiieon."'  *^6  Bailies  of  the  City  of  Glasgow,  whereby  the  suspender 

High  Court.  ^^®  Sentenced  to  sixty  days  imprisonment,  as  having 

?84'8^"    ^^^"^  guilty  of  '  fraud  and  imposition,'  in  obtaining  a 

-  shilling  from  the   Inspector  of  Poor  for  the  Gorbals 

Parish  of  Glasgow. 

The  circumstances  of  the  case  were  as  follows : — 
The  suspender,  who  was  by  trade  a  spinner,  and  who 
had  been,  shortly  before  the  date  of  the  alleged  wrong- 
ful imprisonment,  in  the  Glasgow  Infirmary  for  fever, 
was  unable,  on  his  dismissal  from  the  hospital,  to  resume 
his  employment,  in  consequence  of  boils  on  his  hands. 
He  accordingly  took  employment  as  a  '  piecer'  or  tyer 
up  of  threads,  being  the  work  usually  assigned  to  girls. 
Having  carried  on  this  work  for  some  time,  at  which  he 
could  not  earn  suflBcient  for  the  support  of  himself  and 
family,  he  voluntarily  gave  it  up,  assigning  the  state  of 
his  health  as  a  reason  to  his  master,  and  obtaining  leave 
to  substitute  a  girl  until  he  should  be  able  to  return.  On 
the  same  morning  on  which  he  thus  left  his  employment 
he  applied  for  relief  to  the  inspector,  and  declared  that 
he  was  out  of  employment.  His  application  was  refused, 
as  was  also  a  second.     Having  made  a  third  application, 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  133 

relief  was  given  to  the  extent  of  one  shilling.  Three  jiil^'^S'* 
hours  afterwards  he  was  apprehended,  and  taken  the  fol-  wiison. ' 
lowing  morning  before  the  Bailies,  who  sentenced  him  to  High  Court'. 

•     i        1  •  •  -        ,  Dec.  9, 

sixty  days  imprisonment,  as  having  obtained  the  shilling     i848. 

by  fraud.  Suspension. 

Mackean  presented  his  note,  which  came  on  this  day 
to  be  heard. 

Caenegy  Ritchie,  for  suspender. — Although  the  crime 
of  falsehood,  fraud,  and  wilful  imposition,  was  competent 
to  be  tried  summarily  before  a  Police  Court,  yet,  inasmuch 
as  the  legislature,  by  providing  in  certain  Police  and  other 
Acts  of  Parliament  for  the  trial  of  cases  summarily,  had 
thereby  deprived  the  lieges,  in  these  cases,  of  the  com- 
mon law  privilege  of  having  the  evidence  taken  down  in 
writing,  it  had,  in  lieu  thereof,  provided  certain  equiva- 
lents ;  one  of  these  was  that  a  written  copy  of  the  charge 
or  complaint  must  be  served  on  the  accused  a  sufficient 
time  before  the  trial,  in  order  to  enable  him  to  prepare 
his  defence;  and  another,  that  he  should  be  allowed 
at  least  forty-eight  hours  to  prepare  his  defence.     In 
the   suspender's  case,  no  written  copy  of  the  charge 
was  served  on  him ;  so  far  from  that  being  the  case,  no 
written  copy  of  the  complaint  or  charge  existed  at  the 
time  of  trial,  for  on  its  being  applied  for  some  days  after 
the  trial  by  an  agent  who  was  then  taking  an  interest  in 
the  suspender,  it  was  not  and  could  not  be  produced, 
and  it  was  only  after  a  threat  of  a  suspension  before  the 
Justiciary  Court  that  a  written  copy  was  at  length  pre- 
pared.    The  accused  was  not  allowed  forty-eight  hours 
wherein  to  prepare  his  defence ;  and,  being  locked  up 
a  prisoner  in  the  Police-Office,  he  could  not  get  access 
to  any  friends  who  might  have   advised  and  assisted 
him;  and  he  was  a  simple  ignorant  man,  who  could 
not  be  presumed  to  know  his  legal  rights. 

The  Court,  without  calling  for  a  reply,  refused  the 
suspension,  and  decided  that  it  was  not  necessary  that  a 
written  copy  of  the  charge  or  complaint  should  be  served 
on  the  accused  in  order  to  summary  trial ;  and,  in  regard 


134  CASES  BEFORE  THE  HIGH  COURT 

No.  10.    to  what  was  urged  for  the  suspender,  that  he  was  entitled 

Maekean  e.  iiJT  ,-,■,•  !_• 

Wilson,    to  have  had  forty-eight  hours  wherein  to  prepare   nis 
HighCourt.  defence,  that  this  was  contingent  on  the  pannel  request- 
1848.'    ing  it  at  the  time. 


Suspension. 

C.  Spencb,  S.S.C.,  Suspender's  Agent. Webster,  W.&,  Respondent's  Agent. 


Present, 
Tbe  Lord  Justice-Clerk, 


Ceo.  11. 

'848.  Lords  Moncreifp  and  Medwyn. 

Her  Majesty's  Advocate — Craufurd  A.D. — Deas^  A.I>.. 


James  Hoyes — Larimer. 

Theft — Amotio. — Circumstances  in  whicb  it  was  held  that  the  amotio 
was  not  sufficient  to  constitute  the  crime  of  theft. 

James  Hoyes  was  charged  with  Theft,  committed  by 
No. TL  means  of  Housebreaking;  as  also  with  Housebreaking 
u^Z    ^^*^  Intent  to  Steal. 


HighCourt 
Dec  11.        In  so  PAR  AS,  on  the  night  of  the  25th,  or  morning  of  the  26th,  day 

of  September  1848,  or  on  one  or  other  of  the  days  of  that  month,  or  of 
Theft,  &e.  August  immediately  preceding,  or  of  October  immediately  following, 
you  the  said  James  Hoyes,  did,  wickedly  and  feloniously,  break  into- 
and  enter  a  store-room,  situated  in  or  near  Dickson's  close,  in  or  near 
the  Cowgate  of  Edinburgh,  then  and  now  or  lately  occupied  by  Richard 
Sandilands,  cowfeeder,  then  and  now  or  lately  residing  there,  and  this 
yon  did  by  opening  the  door  thereof,  by  means  of  a  false  key  or  pick- 
lock, or  forcing  open  the  door  by  some  means  to  the  prosecutor  un- 
known, and  entering  thereby ;  and  having  thus,  or  by  some  other 
means  to  the  prosecutor  unknown,  obtained  entrance  into  said  store- 
room, you  the  said  James  Hoyes  did,  then  and  there,  wickedly  and 
fejlpniously,  steal  and  theftuonsly  away  take,  a  cheese,  weighing  twenty 
pounds,  or  thereby,  the  property,  or  in  the  lawful  possession,  of  the- 
said  Richard  Sandilands :  Or  otherwise,  time  above  libelled,  you 
the  said  James  Hoyes  did,  wickedly  and  feloniously,  break  into  and 
enter  the  said  store-room  in  manner  above  mentioaed ;  and  this  yoa 
did  with  intent  to  steal. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  135 

The  evidence  against  the  pannel  was,  that  he  had    No.  ii. 
broken  into  a  store,  adjoining  the  house  of  Sandilands,    Hoyes. 


containing  cheeses,  which  had  been  carefully  left  shortly  High  Court. 
before  placed  in  pairs,  one  upon  the  other.     The  pannel     Tsis. ' 
was  taken  in  the  room  by  a  policeman,  and  one  cheese  Theft,  &c. 
was  found  to  have  been  removed  half  off  the  one  under  it. 

LoRiMER,  for  the  pannel,  contended,  that  the  species 

Jacti  proved  did  not  amount  to  the  crime  of  theft,  as 

there  had  not  been  any  sufficient  amotio  to  shew  an 

actual  taking,  which  was  always  required  in  a  case  of 

theft. 

The  Lord  Justice-Clerk,  said,  that  the  amotio  here 
proved  was  not,  in  the  opinion  of  the  Court,  sufficient 
to  justify  a  conviction  for  theft,  as  it  might  easily  have 
occurred  by  displacement,  when  the  pannel  was  skulk- 
ing about  to  avoid  detection ;  and  they  directed  the 
Jury  to  acquit  on  that  charge.  Even  the  proof  of  any 
displacement  was  very  unsatisfactory,  as  it  all  depended 
on  every  row  of  the  cheeses  having  been  placed  regu- 
larly above  the  other,  and  each  cheese  on  the  centre  of 
the  one  below.     This  was  too  hard  a  presumption. 

On  the  charge  of  housebreaking  with  intent  to  steal, 
the  Jury  uimnimously  found  the  prisoner  guilty. 

In  respect  of  which  verdict  of  Assize,  the  pannel  was. 
sentenced  to  be  imprisoned  for  eighteen  months. 


Her  Majesty's  Advocate. — Graufurd  A.D — J.  M.  Bell  A.I^, 

AGAINST 

Mary  Sutherland  and  Isabella  Gibson  or  Murray. — Lorimer.. 

IDoCNTERiPEIT     CoiN GuiLTY      KNOWLEDGE StAT.     2d     AND     3(1 

Will.  IV.,  c.  34.^"Where  two  pannels  were  charged,  inter  alia, 
with  having  base  coin  in  their  possession  at  the  time  of  uttering 


136  CASES  BEFORE  THE  HIGH  COURT 

No-  12.  other  base  coin  :    1st,  Held  that  it  was  sufficient  to  establish  the 

Sutherland  offence  under  the  statute  against  both  prisoners,  to  shew  that  they 

&  Isabella  were  acting  under  a  common  design  in  uttering,  although  one  of 

them  onlj  had  possession  of  the  base  coin.     2d,  Direction  to  the 

Dec.  1 1. '  Jufyj  that,  in  judging  of  the  sufficiency  of  the  proof  of  a  charge  of 

1848.  uttering  base  money,  the  Jury  were  entitled  to  take  into  considera- 

Con.  2d  &  tion  that  the  paunel  had  been  previously  convicted  of  an  offence 

^A  WTill   TV  J.  •' 

e.  36         '      against  the  coinage  acts,  as  an  evidence  of  guilty  knowledge. 

Mary  Sutherland  and  Isabella  Gibson  or  Murray 
were  charged, — 

That  albeit,  by  an  Act  passed  in  the  second  year  of  the  reign  of 
His  late  Majesty  King  William  the  Fourth,  chapter  thirty-four,  inti- 
tuled '  An  Act  for  consolidating  and  amending  the  Laws  against  of- 
'  fences  relating  to  the  Coin,'  it  is  enacted,  by  section  seventh,  '  That 
'  if  any  person  shall  tender,  utter,  or  put  off,  any  false  or  counterfeit 
'  coin,  resembling,  or  apparently  intended  to  resemble  or  pass  for,  any 
'  of  the  King's  current  gold  or  silver  coin,  knowing  the  same  to  be 
'  false  or  counterfeit,  every  such  offender  shall,  in  England  and  Ire- 
'  land,  be  guilty  of  a  misdemeanour,  and  in  Scotland  of  a  crime  and 
•  offence,  and,  being  convicted  thereof,  shall  be  imprisoned  for  any 
'  term  not  exceeding  one  year ;  and  if  any  person  shall  tender,  utter, 
'  or  put  off,  any  false  or  counterfeit  coin,  resembling,  or  apparently 
'  intended  to  resemble  or  pass  for,  any  of  the  King's  current  gold  or 
'  silver  coin,  knowing  the  same  to  be  false  or  counterfeit,  and  such 
'  person  shall,  at  the  time  of  such  tendering,  uttering,  or  putting  off, 
'  have  in  his  possession,  besides  the  false  or  counterfeit  coin  so  tender- 
'  ed,  uttered,  or  put  off,  one  or  more  piece  or  pieces  of  false  or  counter - 
',  feit  coin,  resembling,  or  apparently  intended  to  resemble  or  pass  for, 
'  any  of  the  King's  current  gold  or  silver  coin,  or  shall,  either  on  the 
'  day  of  such  tendering,  uttering,  or  putting  off,  or  within  the  space  of 
'  ten  days  then  next  ensuing,  tender,  utter,  or  put  off,  any  more  or 
'  other  false  or  counterfeit  coin,  resembling,  or  apparently  intended  to 
'  resemble  or  pass  for,  any  of  the  King's  current  gold  or  silver  coin, 
'  knowing  the  same  to  be  false  or  counterfeit,  every  such  offender 
'  shall,  in  England  and  Ireland,  be  guilty  of  a  misdemeanour,  and  in 
'  Scotland  of  a  crime  and  offence,  and,  being  convicted  thereof,  shall 
'  be  imprisoned  for  any  term  not  exceeding  two  years ;  and  if  any 
'  person  who  shall  have  been  convicted  of  any  of  the  misdemeanours,  or 
'  crimes  and  offences,  hereinbefore  mentioned,  shall  afterwards  commit 
'  any  of  the  said  misdemeanours,  or  crimes  and  offences,  such  person 
'  shall,  in  England  and  Ireland,  be  deemed  guilty  of  felony,  and  in 
'  Scotland  of  a  high  crime  and  offence,  and,  being  convicted  thereof, 
'  shall  be  liable,  at  the  discretion  of  the  Court,  to  be  transported  be- 
'  yond  the  seas  for  life,  or  for  any  term  not  less  than  seven  years,  or 


aiTd  circuit  courts  of  justiciary.  137 

'  to  be  imprisoned  for  any  term  not  exceeding  four  years;'  Yet  tbce    jjq_  jq, 
IT  IS  AND  OP  VERITY,  that  you  the  said  Mary  Sutherland  are  guilty  of      Mary 
the  crimes  and  offences  set  forth  in  the  above  -quoted  section  of  the  &  jgab^a 
statute  above  libelled,  or  of  one  or  more  of  them,  actor,  or  art  and    Gibson, 
part ;  and  you  the  said  Isabella  Gibson  or  Murray  are  guilty  of  the  High  Court, 
crimes  and  offences,  and  high  crime  and  offence,  set  forth  in  the  said    Dee.  U. 
section  of  the  said  statute,  or  of  one  or  more  of  them,  actor,  or  art  and 


part:  In  so  fab  as  on  the  18th  day  of  September  1848,  or  on  one  or  ojwmT  fy 
other  of  the  days  of  that  month,  or  of  August  immediately  preceding,  «.  36. 
or  of  October  immediately  following,  in  or  near  the  shop  situated  in 
or  near  Adam  Square,  in  or  near  Edinburgh,  then  and  now  or  lately 
occupied  by  Daniel  White,  then  and  now  or  lately  spirit-merchant 
there,  you  the  said  Mary  Sutherland  and  Isabella  Gibson  or  Murray 
did,  both  and  each,  or  one  or  other  of  you,  wickedly  and  feloniously, 
tender,  utter,  or  put  off,  as  genuine,  a  false  or  counterfeit  coin,  re- 
sembling, or  apparently  intended  to  resemble,  or  pass  for,  a  sixpence 
piece  of  the  Queen's  current  silver  coin,  you  knowing  the  same  to  be 
false  or  counterfeit ;  and  this  you  did,  by  then  and  there  delivering  the 
same  as  genuine  to  Samuel  Bates,  then  and  now  or  lately  shopman  in 
the  employment  of  the  said  Daniel  White,  then  and  now  or  lately  re- 
siding in  or  near  Murdoch's  Close,  High  Street,  Edinburgh,  in  payment 
of  a  bottle  or  a  pint  bottle  of  ale,  then  and  there  purchased,  or  proposed 
to  be  purchased,  by  you,  you  proposing  to  receive  the  balance  in 
change :  Lireas  (2.),  time  above  libelled,  and  within  or  near  the 
shop  or  premises  above  libelled,  you  the  said  Mary  Sutherland  and 
Isabella  Gibson  or  Murray,  both  and  each,  or  one  or  other  of  you,  had 
in  your  possession  besides  the  false  or  counterfeit  coin  so  tendered, 
uttered,  or  put  off,  as  above  libelled,  a  false  or  counterfeit  coin,  re- 
sembling, or  apparently  intended  to  resemble,  or  pass  for,  a  sixpence 
piece  of  the  Queen's  current  silver  coin :  And  you  the  said  Isabella 
Gibson  or  Murray  have  been  previously  convicted  of  the  crimes  and 
offences  set  forth  in  the  seventh  section  of  the  statute  above  libelled, 
or  one  or  other  of  them. 

The  pannel  Sutherland  pleaded  guilty.  The  other 
pannel  went  to  trial. 

It  appeared  from  the  evidence,  that  the  two  pannels 
had  gone  together  into  a  spirit  shop  for  a  dram,  which 
was  mutually  partaken  of;  that  Sutherland  had  tendered 
^  bad  sixpence  in  payment,  and  that  on  being  apprehend- 
ed, another  piece  of  base  coin  was  foimd  upon  her. 
There  was  no  evidence  against  the  other  pannel,  except 
that  she  was  in  the  company  of  Sutherland,  and  that  she 

K 


138  CASKS  BEFORE  THE  HIGH  COURT 

No-  ^2.    partook  of  the  dram  for  which  the  bad  sixpence  was 

Sutherland  tendered. 
Gibson.*      LoElMER,  for  iMurraj,  contended,  that  there  was  no 

High  Court,  proof  to  connect  the  pannel  Gibson  with  the  offences  to 
ms!'   which  Sutherland  had  pleaded  guilty. 

Con.  2d  &       The  Lord  Justice-Clerk,  in  charging  the  Jury,  said, 

3d  Will.  IV.  ^jjg^^  j£  ^]^gy  considered  that  Murray  was  art  and  part 
with  Sutherland  in  the  proceedings  which  formed  the 
subject  of  the  present  enquiry,  then,  although  Sutherland 
alone  was  the  utterer  of  the  base  coin,  and  though  no  bad 
money  was  found  on  Murray,  they  would  be  entitled  to 
find  both  guilty  of  the  offences  libelled,  both  having 
gone  on  a  common  design. 

His  Lordship  also  directed  them,  that  in  respect  of 
the  two  previous  convictions  for  the  same  offence,  which 
had  been  proved  against  the  prisoner  Murray,  that  they 
were  entitled  to  take  them  into  calculation,  as  evidence 
of  guilty  knowledge  on  the  part  of  Murray  (if  they  were 
satisfied  that  the  two  pannels  were  acting  in  concert), 
for  they  tended  to  shew  that  Murray  was  a  trader  in 
base  coin.  At  the  same  time  he  directed  the  Jury,  that 
in  determining  the  weight  to  be  given  to  such  evidence, 
they  would  have  regard  to  the  lapse  of  time  since  the 
date  of  the  last  conviction,  which,  in  the  present  instance, 
was  considerable,  as  diminishing  the  effect  such  evidence 
might  otherwise  have  had. 

The  Jury  unanimously  found  the  libel  against  the  pan- 
nel Gibson  or  Murray  not  proven. 

In  respect  of  which  verdict  of  Assize,  the  said  Isabella 
Gibson  or  Murray  was  assoilzed  simpliciter. 

In  respect  of  the  judicial  confession  of  the  pannel 
Mary  Sutherland,  she  was  sentenced  to  be  imprisoned  for 
eighteen  months. 


AND  CIECUIT  COURTS  OF  JUSTICIARY.  1  39 

Present, 
The  Lord  Justice-Qlerk,  Dee.  20. 

1848.  ' 

Lords  Moncreiff,  Medwyn,  Cockbubn,  and  Wood. 
Peter  Phillips  and  William  Ford,  Suspenders — Moncreiff. 

AGAINST 

John  Gross,  Respondent — Neaves. 

Police  Court — Informality. — Circumstances  in  which  a  sentence 
of  a  Police  Court  was  set  aside  in  consequence  of  the  evidence  not 
having  been  reduced  to  writing. 

This  was  a  suspension  of  a  sentence  pronounced  by    No.  is. 
one  of  the  bailies  of  the  Burgh  Court  of  Airdrie,  pro-  phii!^3& 
ceeding  on  the  following  petition  and  complaint : —  FordT 

John  Cross. 


Unto  the  Honourable  the  Magistrates  of  Airdrie,  or  any  of  High  Court. 
'  them  officiating  as  Judge  in  the  Police  Court  of  Airdrie, —      j  g^g 


The  Complaint  of  John  Cross,  writer  in  Airdrie,  Procura- 


'  tor-fiscal  of  Court  for  the  Public  interest. 
'  The  Complaiuer  charges  Peter  Phillips,  miner,  Airdrie  ;  John 
'  Gilraour,  miner,  Airdrie  ;  John  Gray,  miner,  Airdrie  ;  and  William 
'  Ford,  miner  or  collier,  Airdrie,  with  disorderly  conduct  and  breach 
'  of  the  peace,  actors  or  actor,  or  art  and  part :  In  so  far  as,  on  or 
'  about  Wednesday,  the  5th  day  of  July  1848,  and  at  or  near  the  gar- 
'  den  ground  attached  to  Mavisbank  Cottage,  occupied  by  John  Cross, 
'  writer  in  Airdrie,  situated  at  or  near  Commonside,  Airdrie,  they  all 
'  and  each,  or  one  or  more  of  them,  did  wantonly  and  maliciously  at- 
'  tack,  molest,  annoy,  and  use  violent,  threatening,  abusive,  and  ob- 
'  scone  language  towards  Isabella  Copland,  servant  to  the  said  John 
'  Cross,  and  others ;  and  also,  did  then  and  there,  otherwise  conduct 
'  themselves  in  a  riotous  and  disorderly  manner,  to  the  annoyance  of 
'  the  lieges,  and  in  breach  of  the  peace. 

I  (Signed)        '  John  Cross,  Procurator-Jtscal.' 

The  circumstances  out  of  which  the  complaint  arose 
were  as  follows : — The  respondent  is  proprietor  of  a  small 


140  CASES  BEFORE  THE  HIGH  COURT 

No.  13.    cottage  and  garden,  situated  in  Airdrie,     Adjoining  his 
Phillips  &  fence  was  a  well,  situated  on  ground  belonging  to  his 
FordT   superior,  with  whose  consent  all  parties  in  the  neigh- 
^^?!^^^- bourhood  had  been  in  the  practice  of  supplying  them- 
^Lfc^o!*"  selves  with  water  therefrom.     The  respondent,  wishing 
^°*"-     to  appropriate  the  well  to  himself,  caused  a  lid,  secured 
Suspension  jjy  j^  padlock,  to  be  placed  on  the  top  thereof,  which  was 
removed  by  order  of  the  superior.     The  respondent 
afterwards,  in  order  to  drive  away  the  people  who  were 
accustomed  to  resort  there  for  water,  allowed  his  family 
and  servants  to  cast  clay  and  rubbish  into  the  well,  and 
thereby  to  render  the  water  unfit  for  use.     On  the  5  th 
of  July  184S,  the  complainers  went  to  the  well  for  water. 
When  there,  they  found  the  respondent's  maid-servant 
casting  rubbish    over   a  wall  from   his    garden,  part 
of  which  fell  into  the  well,  and  rendered  the  water 
unfit  for  use.     Whereupon  an  altercation  ensued,  in  the 
midst  of  which  the  respondent  appeared,  and  having 
charged  the  complainers  with  a  breach  of  the  peace,  he 
thereafter  presented  the  preceding  petition  to  the  Police 
Court.      On  the   same  day,   a  warrant  to  apprehend 
the  complainers,  and  others  mentioned  in  the  petition, 
was  granted  by  one  of  the  bailies.     This  warrant  was 
never  formally  served  upon  or  intimated  to  th^  com- 
plainers ;  but,  on  the  10th  of  July,  they  appeared  before 
another  bailie,  who,  having  partially  heard  the  case,  at 
the  request  of  the  respondent,  committed  them  to  the 
prison   of  Airdrie   for  farther   examination, — the   re- 
spondent positively  objecting  to  their  being  liberated  on 
bail.     On  the  13th,  the  case  was  heard  in  the  Police 
Ofiice,  with  closed  doors,  before  a  single  judge,  and  was 
taken  up  .without  any  adjournment, — no  agent  being 
allowed  to  be   present  on  behalf  of  the  complainers. 
After  hearing  evidence  on  both  sides, — no  note  or  record 
of  which  was  reduced  to  writing,  the  judge  pronounced 
sentence,  decerning  the  complainers  to  pay  respective- 
ly a  fine  of  30s.,  or,  failing  payment,  to  be  imprisoned 
in  the  prison  of  Airdrie  for  twenty  days.     The  fine  not 


aKd  circuit  courts  op  justiciary.  141 

being  paid,  they  were  afterwards,  on  the  same  evening,    No.  13. 
taken  to  prison,  under  the  following  warrant : —  Phiiups  & 

William 
'  At  Airdrie,  the  ISth  day  of  July  1848  years. — Sitting  in  judgment,  .  *'°''^  "■ 

'  Charles  Robertson,  Esquire,  one  of  the  magistrates  of  Airdrie. — The  —_ 

'  cause  being  called,  the  defenders  appeared,  and  the  bailie  having    ^^^  '^  ' 
'  heard  them  in  answer  to  the  complaint,  and  examined  on  oath,  in      1848. 
'  their  presence,  the  witnesses  adduced,  Finds  the  defenders  guilty  of  Suspensiou. 
'  the  offences  charged  in  the  within  complaiijt ;  and,  in  respect  thereof, 
'  decerns  and  adjudges  the  said  defenders,  Peter  Phillips,  John  Gil- 
'  mour,  John  Gray,  and  William  Ford,  to  be  imprisoned  in  the  prison 
'  of  Airdrie,  and  detained  therein,  subject  to  the  rnles  and  regulations 
'  thereof,  for  the  period  of  twenty  days  from  this  date. 

(Signed)        '  Charles  Robertson,  Bailie.' 

Phillips  and  Ford  suspended,  and  their  cases  were  this 
day  heard. 

MoNCREiFF,  for  the  suspenders, — The  whole  proceed- 
ings were  irregular  and  informal,  inasmuch  as  there  was 
no  proof  reduced  to  writing,  on  which  the  sentence  had 
proceeded  {Penman  v.  Watts,  High  Court,  Nov.  24. 1845, 
Broun,  vol.  ii.  586.)     He  was  then  stopped. 

Neaves,  for  the  respondent — The  case  is  not  compe- 
tently here.  By  the  72d  section  of  1st  and  2d  Geo.  IV. 
c.  60  (the  Airdrie  Police  Act),  it  is  provided  that  any 
aggrieved  person  may  appeal  to  the  Circuit  Court,  and 
that  was  the  remedy  which  the  complainers  should  have 
taken. 

Lord  Medwyn. — Surely  a  man  in  jail  is  not  to  en- 
dure his  full  imprisonment  before  he  appeals.  He  would 
then  be  met  with  another  objection,  that  there  was  no- 
thing to  suspend.  In  this  case  the  whole  proceedings 
are  plainly  inept,  and  I  think  we  ought  to  suspend,  with 
expenses. 

The  other  Judges  concurred. 


142  CASES  BEFORE  THE  HIGH  COURT 

John  Eitchie,  Suspender — Deae. 

AGAINST 

David  Pilmbr,  Eespondent — Neave$, 

Suspension — Informality  of  Citation. — Held,  that  where  a  person 
has  been  cited  as  a  witness,  and  preqpgnosced  as  such,  he  cannot, 
on  his  attendance  in  obedience  to  his  citation,  be  summarily  put 
to  the  bar,  and  tried  as  being  guilty  of  the  offence,  in  respect  of 
which  he  had  been  required  to  attend  as  a  witness. 

Ritchie*B       "^^^^  Suspensioii  originated  in  the  following  circum- 
P'lmer.    stances : — 

High  Court.     The   Suspender  who  was  master  of  the    schooner 
1848. '   '  Jules'  of  Dundee,  had  bought  at  Revel  three  pork 

Suspension,  hams,  and  other  articles  of  diet,  as  he  alleged,  for  his 
own  use ;  as  also,  some  beef  at  a  small  price  for  the  use 
of  the  vessel.  During  the  voyage  home,  having  some 
ladies  as  passengers,  he  had  used  for  their  accommodation 
two  of  the  pork  hams  he  had  bought  for  himself.  He 
had  also  cured  as  hams  two  portions  of  the  beef  which  he 
had  bought  for  the  use  of  the  vessel.  The  value  of  the 
beef  hams  so  cured,  was  much  less  than  that  of  the  pork 
hams  which  had  been  consumed. 

On  the  arrival  of  the  vessel  at  Dundee,  and  before 
any  adjustment  of  accounts  between  the  suspender  and 
the  shipowners,  the  suspender,  in  the  presence  of  the 
ship's  agent,  ordered  the  cook  to  take  two  beef  hams 
which  he  had  cured  on  board  out  of  the  vessel,  and 
carry  them  on  shore  for  his  own  use. 

The  ship's  agent  having  given  information  against  the 
cook,  a  criminal  complaint  of  theft  was  preferred  against 
him  at  the  instance  of  the  respondent,  and  the  morning 
when  the  same  was  coming  on  to  be  heard,  the  suspen- 
der was  cited  as  a  witness  in  the  following  terms  : — 

'  I,  Joseph  Hanna,  Constable  of  the  Harbour  Police  Court  of  Dun- 
'  dee,  and  surrounding  bounds,  over  which  the  powers  and  regulations 
'  of  the  Dundee  Police  Act  and  Dundee  Harbour  Acts  extend,  sum- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  143 

mon    you,    John  Ritchie,  now  or  lately  Shipmaster,  residing   in     No.  14. 
Broughty  Ferry,  to  compear  before  the  Judge  of  said  Harbour  Po-     p?~g-*' 
lice,  in  a  Court  to  be  held  in  the  Burgh  Police  Court-Room,  Dun 


dee,  upon  the  5th  day  of  October  1 848,  in  the  hour  of  cause,  half-    jfeo.  20. 
'  past  nine  o'clock  forenoon,  to  bear  evidence  for  the  Complainer,  in       1848. 
'  the  complaint  at  the  instance  of  David  Pilmer,  Superintendent  of  Suspension. 
'  Harbour  Police,  against  Charles  Jameson,  sailor,  accused  with  the 
'  crime  of  theft,  with  certification  :  This  I  do  upon  the   5th  day  of 
'  October  1848.  Joseph  Hanna,  H.  P.  Constable.' 

This  citation  was  served  upon  the  suspender  at  half- 
past  six  in  the  morning,  at  Broughty  Ferry,  a  distance 
of  four  miles  from  Dundee. 

On  the  suspender's  arrival  in  Dundee,  shortly  before 
the  time  of  hearing  the  complaint,  he  was  precognosced 
by  the  respondent,  and  told  to  wait  in  a  private  room. 
Shortly  afterwards,  he  was  informed  that  he  would  be 
jointly  prosecuted  along  with  Jameson  the  cook ;  and 
was  accordingly,  after  the  lapse  of  half  an  hour,  placed 
at  the  bar,  together  with  him,  on  the  following  com- 
plaint, which  had  been  prepared  in  the  mean  time  : — 

'  Unto  the  Honourable  the  Judges  actiug  in  the  Police  Court  for 
'  the  Burgh  of  Dundee,  and  also  for  the  Harbour  and  those  parts  of 
'  the  River  or  Frith  of  Tay  which  are  within  the  limits  and  precincts 
'  of  the  Port  and  Harbour  of  Dundee,  and  over  which  the  powers  and 
'  regulations  of  the  Dundee  Police  Act  and  Dundee  Harbour  Act  ex- 
'  tends ;  Humbly  complains  David  Pilmer,  Superintendent  of  the 
'  Dundee  Harbour  Police,  and  Procurator-Fiscal  of  Court  for  the 
'  public  interest,  against  John  Ritchie,  shipmaster,  residing  in  Broughty 
'  Ferry,  and  Charles  Jameson,  sailor  or  sailmaker,  residing  at  Hawk- 
'  hill,  Dundee,  defenders,  for  being  guilty  of  the  crime  of  theft,  actors  or 
'  art  and  part :  In  so  far  as,  on  Wednesday  the  4th  of  October  1848 
'  years,  from  the  schooner  '  Jules'  of  Dundee,  then  lying  in  Earl 
'  Grey's  Dock,  at  the  Harbour  of  Dundee,  said  defenders  did,  both 
'  and  each,  or  one  or  other  of  them,  wicked  and  feloniously  steal,  and 
'  theftuously  away  take,  two  beef  hams,  weighing  40  lbs.  or  thereby, 
'  the  property  or  in  the  lawful  possession  of  Baxter  Brothers  and 
'  Company,  merchants  and  shipowners  in  Dundee,  and  which  property, 
'  stolen  as  aforesaid,  does  not  exceed  in  value  £10  sterling.  It  ia 
'  therefore  craved,  that  warrant  be  granted  for  apprehending  and 
'  carrying  the  said  defenders  into  Court,  to  answer  to  this  complaint, 
'  and  for  citing  witnesses  for  both  parties;  and  that  said  defenders  be 


144  CASES  BEFORE  THE  HIGH -COURT 

No.  14.     '  thereafter  punished  according  to  law,  or  such  other  judgment  as  the 
Ritchie  V.  i  ^g^gg  jjj^y  require. — According  to  Justice, 

. 1_  <  David  Pilmer,  Superintendent.' 

High  Court. 

1848  ■       On  this  complaint,  the  Judge  granted  the  following 
Suspension,  deliverance  forthwith  : — 

'  Dundee,  bth  October  1848. — ^The  Judge  grants  warrant  to  officers 
'  of  police  for  apprehending  and  bringing  the  said  defenders,  John 
'  Ritchie  and  Charles  Jameson,  into  Court,  and  for  citing  witnesses 
'  for  both  parties.  Peter  Hean,  Bailie.' 

When  placed  at  the  bar,  the  suspender,  as  alleged  by 
him,  repeated  what  he  had  said  to  the  respondent,  that 
the  hams  had  been  taken  out  of  the  vessel  by  his  orders, 
under  the  circumstances  above  set  forth.  This  was 
treated  as  a  plea  of  guilty  by  the  Police  Judge,  who 
thereupon  pronounced  the  following  sentence  : — 

'  Dundee,  5th  October  1 848. — Having  considered  the  foregoing 
'  complain^,  examined  the  defenders,  and  the  defender  John  Ritchie 
'  having  confessed  that  he  is  guilty  as  libelled.  Finds  him  guilty  in 
'  terms  of  his  own  confession ;  and  having  heard  evidence  adduced 
'  against  the  defender  Charles  Jameson,  Finds  the  complaint  proven 
'  against  the  said  Charles  Jameson  :  Therefore,  adjudges  and  ordains 
'  the  defenders  to  be  imprisoned  in  the  Jail  or  Tolbooth  of  Dundee, 
'  in  modum  jprnnce,  for  the  space  after  mentioned, — viz.,  the  defender 
'  John  Ritchie,  for  sixty  days,  and  the  defender  Charles  Jameson,  for 
'  thirty  days,  both  from  this  date  ;  and,  during  the  period  of  imprison- 
'  ment,  to  be  kept  at  hard  and  continued  labour  in  the  Bridewell  de- 
'  partment  of  said  Jail  or  Tolbooth,  subject  to  the  rules  and  regula- 
'  tions  of  the  Establishment,  and  grants  warrant  accordingly :  Or- 
'  dains  the  stolen  property  to  be  restored  to  the  true  owners,  designed 
'  in  the  complaint.  Peter  Hean,  Bailie' 

This  sentence  was  immediately  carried  into  effect ; 
whereupon  Ritchie  suspended,  on  the  ground  that,  hav- 
ing been  cited  as  a  witness,  and  precognpsced  as  such,  it 
was  incompetent  afterwards  to  put  him^o  the  bar  as  a 
criminal,  and  proceed  to  convict  him  on  the  statement 
he  had  made,  whilst  considering  himself  a  witness. 

Pleaded  for  the  suspender,  that  this  was  an  irregular 
and  illegal  proceeding.  No  person  who  had  been  cited  as 


AND  CIKCDIT  COURTS  OF  JUSTICIARY.  145 

a  witness  could  competently  be  precognosced  in  that  cha-    No.  u. 

IP  11  .  1  11  n         Ritchie  -p. 

racter,  and  alterwards  be  put  into  the  dock  on  a  tew    pumer. 


minutes  notice,  and  tried  forthwith,  without  opportunity  HighCom-t. 
to  obtain  advice,  and  get  that  assistance  which  was  ne-     ms. ' 
cessary  to  enable  him  to  refute  so  serious  a  charge ;  case  Suspension, 
of  Robertson  v.  Mackay,  High  Court,  July  21.  1846, 
(Arkley,  p.  114). 

2.  The  alleged  plea  of  guilty  on  which  the  sentence 
professedly  proceeded,  was  altogether  a  mistake.  In 
point  of  fact,  it  was  a  plea  of  not  guilty,  inasmuch  as 
the  facts  shewed  that  the  taking  was  lawful. 

Pleaded  for  the  respondent — The  Judge  found  that 
the  suspender  confessed  his  guilt,  and  he  was  the  proper 
judge  to  say  whether  he  had  done  so  or  not.  It  was 
impossible  to  ascertain  what  were  the  words  used  by  the 
suspender  at  the  time,  and  consequently  the  Court  could 
not  enquire  whether  the  inference  which  the  Judge  drew 
was  well  founded,  or  otherwise. 

2.  There  was  no  illegality  or  irregularity.  The  police 
had  acted  honestly  throughout ;  they  treated  him  as  a 
witness,  so  long  as  they  thought  him  innocent  of  the 
crime;  and  when  they  had  discovered  him  to  be  art  and 
part,  there  was  no  necessity  for  serving  upon  him  any 
complaint,  or  citing  him  to  appear,  as  he  was  already  in 
custody.  Besides,  it  was  not  averred  that  he  had  re- 
quested time  to  prepare  a  defence  when  the  case  was 
heard. 

The  CouET,  without  entering  on  the  question,  wher 
ther  the  statement  of  the  suspender  warranted  the 
Bailie  to  consider  it  as  a  plea  of  guilty,  unanimously 
sustained  the  suspension,  on  the  ground  that  the  citing 
a  person  as  a  witness  so  short  a  time  before  the  trial  of 
the  party  against  .whom  he  was  to  have  been  adduced — 
precognoscing  hiin  as  such,  and  then  turning  round  and 
charging  him  on  his  own  evidence,  so  procured,  was  an 
irregularity  so  flagrant,  that  no  sentence  could  be  sus- 
tained which  had  followed  thereon ;  and  observed,  that 


146  CASES  BEFORE  THE  HIGH  COURT 

No.  J4.    the  case  of  Robertson  v.  Mackay  entirely  governed  the 

Ritchie  d. 

Piimer.    pressnt. 

■  High  Court. 

"fais."        The  sentence  was  accordingly  suspended,  with  ex- 


Suspension,  penseS. 

WoiHEESPooN  &  Mack — Lockhart,  Huni£b,  &  Whuehead. — Agents. 


Methven,  Saspender. — P.  Frater. 


Glass,  Respondeat. — Neaves. 

Suspension — Master  and  Servant — Statute  4th  Geo.  IV.  o.  34. 
— Held,  that  a  judgment  of  the  Quarter  Sessions  both  discharging 
the  servant  and  abating  the  wages,  was  unwarranted  by  the  statute. 

No.  IS.  This  was  a  suspension  of  a  decision  of  the  Quarter- 
^^^Giass  ''  Sessions  of  the  county  of  Fife,  reversing  the  decision 
High  Court  °^  *^®  Justiccs  on  a  complaint  against  the  suspender, 

Dee.  20.   that  he  had  absented  himself  from  his  master's  service 

1848. 

-before  the  period  of  his  engagement  had  expired.  On 
the  original  hearing  before  the  Justices,  they  found  in 
favour  of  the  suspenderj  and  dismissed  the  complaint, 
whereupon  the  respondent  having  appealed  to  the  Quar- 
ter-Sessions, that  judgment  was  reversed,  and  it  was 
decerned  that  the  suspender  should  be  discharged  from 
service,  and  should  also  abate  all  wages. 

Feaser,  for  the  suspender,  argued,  that  this  decerni- 
ture  was  more  than  the  statute  authorised.  The  third 
section  of  4th  Geo.  IV,  cap.  34.  only  authorised  alterna- 
tive penalties.  Quarter-Sessions  might  either  discharge, 
or  abate  the  wages  which  had  been  earned,  but  could 
not  do  both,  as  those  penalties  were  not  cumulative 
under  the  statute. 

Neaves. — The  sentence  was  not  objectionable  on  the 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  147 

ground  alleged.     The  punishment  inflicted  was  merely    No.  ifi. 

It     i  ii  ^       ,  1  -     1  ,        ,  ,  ,         ,  1  1  Methven  v. 

that  the  wages  tor  the  whole  term  should  be  abated,  and     Glass. 


the  discharge  from  service  followed  as  a  necessary  con- High  Court. 

Dec.  20. 

sequence.  i848. 

Lord  Justice-Clerk. — How  can  you  abate  what  is  suspeuBion. 
not  yet  due. 

Neaves. — Take  it  that  it  discharges  him  from  the 
service,  it  follows  that  he  would  get  no  wages. 

Lord  Justice-Clerk. — Yes,  he  would  get  wages  up  to 
the  period  when  he  was  discharged.  The  principle  is  to 
prevent  desertion  in  search  of  better  wages,  but  the 
penalty  imposed  is  either  dismissal  from  service,  or  for- 
feiture of  wages  already  earned.  These  are  in  the 
alternative,  whereas  you  have  proceeded  to  impose  both. 
That  is  clearly  beyond  the  statute. 

Lord  Moncreiff. — If  you  make  the  sentence  extend 
to  wages  not  due  at  the  period  of  dismissal,  then  it  is 
repugnant  and  insensible.  If  it  had  been  your  object  to 
mulct  the  suspender  of  his  wages  for  the  whole  term,  in- 
stead of  dismissing  him  from  the  service,  you  should 
have  ordained  him  to  serve  the  whole  time  without 
wages. 

The  other  Judges  concurred. 

The  note  was  accordingly  passed,  with  £5,  5s.  of 
modified  expenses. 

Andrew  Mhrrat,  W.S. — John  Murdoch,  S.S.C. — Agents. 


148  CASES  BEFORE  THE  HIGH  COURT 

Robert  Craig,  Suspender. — Neaves. 

AGAINST 

John  Mure  Steel. — Deas. 

Police  Court — ImiEGnLARiTY  op  Citation. — Held,  that  it  was  in- 
competent to  proceed  iu  a  Police  Court  against  a  pannel  who  had 
been  cited  on  the  previous  day  to  that  on  which  the  case  was  heard, 
to  answer  a  different  charge. 

No.  16.        This  suspension  arose  in  the  following  manner.     On 
stelh  *   the  12th  of  December  1848,  the  respondent  presented  a 


High  Court,  petition  to  the  Justices  of  the  Peace  for  the  county  of 
fsis. '   Lanark,  for  citation  of  the  suspender,  on  a  charge  of 


Suspension,  theft,  and  on  that  day  the  suspender  found  bail  for  his 
appearance  on  the  14th.  On  the  13th  a  citation  was 
regularly  served,  requiring  him  to  appear  on  the  14th, 
to  answer  to  the  charge  of  theft  for  which  he  had  given 
bail.  When  the  case  came  on  he  was  charged  with 
theft  or  breach  of  trust  alternatively.  He  was  attended 
by  his  agent,  and  made  no  objection  to  the  regularity  of 
the  charge,  and  was  thereupon  afterwards  convicted  by 
the  presiding  Justices. 

Having  presented  his  bill  of  suspension,  which  came 
on  this  day  to  be  heard,  the  Court,  without  hearing 
Neaves  for  the  suspender,  called  on 

Deas,  for  the  respondent,  who  urged  that  there  was 
no  ground  for  suspending  the  conviction,  as  the  party, 
who  acted  under  advice  at  the  time  when  the  original 
complaint  was  heard,  took  no  objection  to  the  regularity 
of  the  proceedings,  and  thereby  homologated  any  mistake 
which  might  have  been  made.  It  was  as  if  the  party, 
having  been  present  in  the  Police-office,  had  been 
charged  on  a  regular  complaint  for  theft  or  breach  of 
trust,  without  ever  having  been  cited  at  all.  If,  in  such 
circumstances,  he  chose  to  go  to  issue,  without  objecting 
that  he  had  not  been  cited,  he  could  not  afterwards  ob- 
ject when  a  conviction  followed.  No  doubt  the  citation, 
which  was  actually  served  in  this  case,  was  inapplicable, 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  149 

and  must  be  held  to  be  out  of  the  case,  which  must  be  No.  le. 
considered  as  if  it  commenced  when  the  parties  came  to  steei. ' 
the  bar  on  the  14th.  High  court. 

The  Lord  Justice-Clerk. — There  is  no  extremity  of    Tsis. ' 
time  in  this  case,  requiring  us  to  hold  the  proceedings  Suspension. 
good  in  respect  thereof.    There  was  a  regular  complaint 
made  on  the  12th,  and  bail  was  taken  on  that  day  for 
the  appearance  of  the  suspender  on  the  14th,  to  answer 
to  a  charge  of  theft.     Then  on  the  13th  there  is  a  cita- 
tion to  answer  to  the  same  charge.     When  the  case  is 
called  on  the  14th,  the  party  is  charged  with  theft  or 
breach  of  trust  alternatively.     This,  I  conceive,  to  be  an 
incompetent  proceeding.     I  cannot  think  in  these  sum- 
mary cases  that  it  is  competent  to  cite  a  party  to  answer 
for  one  offence,  then,  without  notice,  on  his  appearance 
in  obedience  to  the  citation,  to  charge  him  with  another. 
I  think  this  objection  is  insuperable,  and  that  the  con- 
viction ought  to  be  suspended,  with  expenses. 
The  other  Judges  concurred. 

WoTHERspooN  &  Mack,  W.S.^John  Leishman,  W.S. — Agents. 


Present, 
The  Lord  Justice-Clerk.  Jan.  2. 

1849. 

Lords  Mackenzie  and  Cockburn. 

Her  Majesty's  Advocate — Sol.-Gen.  T.  Maitland — Graufurd 

A.D. 

against 

John  Hamilton  and  Mary  Garden  or  Hamilton. — Moncreiff. 

Beset  op  Theft — Married  Woman. — Eule  stated,  that  it  was  not 
enough  to  warrant  conviction  of  a  married  woman  of  reset  of  theft, 
that  she  had  endeavoured  to  conceal  some  of  the  articles  from  the 
police ;  the  Jur  j  being  satisfied  that  she  did  this,  not  because  she 
had  been  concerned  in  the  reset,  but  merely  to  screen  her  hus- 
band. 


150  CASES  BEFORE  THE  HIGH  COURT 

No  17.        John  Hamilton  and  Maey  Garden  or  Hamilton, 

John  ■ 

Hamilton  were  charged  with  Reset  of  Theft : 

and  Mary  ° 

Hamilton. 

-— -r In  so  fab  as  (1.),  on  one  or  other  of  the  days  of  the  month  of  April 

Jan.°2.'^  ■  1846,  or  of  March  immediately  preceding,  or  of  May  immediately  fol- 
1849.  lowing,  the  particular  day  being  to  the  prosecutor  unknown,  some  per- 
Reset  of  son  or  persous  to  the  prosecutor  unknown,  having  wickedly  and  felo- 
Theft.  niously  stolen  and  theftaously  carried  away  from  the  house  or  pre- 
mises in  or  near  Nicolson  Street  of  Edinburgh,  then  and  now  or  lately 
occupied  by  John  Crichton,  tailor  and  clothier,  then  and  now  or  lately 
residing  there,  a  silver  watch,  the  property,  or  in  the  lawful  possession, 
of  the  said  John  Crichton :  As  also  (2.),  on  one  or  other  of  the  days 
of  the  mouth  of  June  1 848,  or  of  May  immediately  preceding,  or  of 
July  immediately  following,  the  particular  day  being  to  the  prosecutor 
unknown,  some  person  or  persons  to  the  prosecutor  unknown,  having, 
within  or  near  a  house  in  or  near  the  Caiiongate  of  Edinburgh,  the  oc- 
cupant or  occupants  of  said  house  being  to  the  prosecutor  unknown, 
wickedly  and  feloniously,  stolen  and  theftuously  carried  away  from  the 
pocket  or  person  of  Emanuel  Burton,  a  cabinet-maker,  then  and  now 
or  lately  residing  in  Heriot  Mount,  in  or  near  Edinburgh,  a  silver 
watch,  and  a  guard-chain,  the  property,  or  in  the  lawful  possession,  of 
the  said  Emanuel  Burton  :  As  also  (3.),  on  the  8th  day  of  June  1848, 
or  on  one  or  other  of  the  days  of  that  month,  or  of  May  immediately 
preceding,  or  of  July  immediately  following,  some  person  or  persons 
to  the  prosecutor  unknown,  having  wickedly  and  feloniously  stolen  and 
theftuously  carried  away  from  the  house  or  premises  in  Broxburn, 
parish  of  Uphall,  and  county  of  Linlithgow,  then  and  now  or  lately 
occupied  by  John  Bruce,  merchant,  then  and  now  or  lately  residing 
there,  a  gold  watch,  the  property,  or  in  the  lawful  possession,  of  the 
said  John  Bruce  :  As  also  (4.),  on  the  night  of  the  19th,  or  morning 
of  the  20th,  day  of  June  1848,  or  on  one  or  other  of  the  days  of  that 
mouth,  or  of  May  immediately  preceding,  or  of  July  immediately  fol- 
lowing, some  person  or  persons  to  the  prosecutor  unknown,  having, 
within  or  near  a  house  in  or  near  the  Leith  Wynd  of  Edinburgh,  oc- 
cupied by  Janet  Shaw,  or  by  some  other  person  to  the  prosecutor  un- 
known, wickedly  and  feloniously,  stolen  and  theftuously  carried  away 
from  the  pocket  or  person  of  David  Blaikie,  mason,  then  and  now  or 
lately  residing  in  or  near  the  Links  of  Burntisland,  in  the  parish  of 
Burntisland,  and  county  of  Fife,  a  silver  watch,  the  property,  or  in  the 
lawful  possession,  of  the  said  David  Blaikie :  As  also  (5.),  on  the 
night  of  the  22d,  or  morning  of  the'23d,  day' of  June  1848,  or  on  one 
or  other  of  the  days  of  that  month,  or  of  May  immediately  preceding, 
or  of  July  immediately  following,  some  person  or  persons  to  the  pro- 
secutor unknown,  haying,  within  dr  near  a  house  in  or  near  the  Leith 
Wynd'of  Edinburgh,  then  or  recently  occupied  by  Ann  Laurie,  then 
or  recently  before  residing  there,  or  by  some  other  person  or  persons 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  151 

to  the  prosecutor  uaknown,  wickedly  and  feloniously,  stolen  and  theftu-  Noi  ]  7. 

ously  taken  away  from  the  pocket  or  person  of  Hugh  Norris,  surgeon,  ufmiu.. 

then  residing  in  Union  Place,  in  or  near  Edinburgh,  and  now  or  lately  and  Mary 

at  South  Petherton,  in  the  county  of  Somerset,  in  England,  a  silver  Hamilton. 
watch,  and  a  pencil-case,  the  property,  or  in  the  lawful  possession,  of  High  Court- 

the  said  Hugh  Norris  :  As  also  (6.),  on  the  night  of  the  23d,  or  morn-  isig.' 


ing  of  the  24th,  day  of  June  1848,  or  on  one  or  other  of  the  days  of  that  _  . 
month,  or  of  May  immediately  preceding,  or  of  July  immediately  follow-  Theft, 
ing,  some  person  or  persons  to  the  prosecutor  unknown,  having,  within 
or  near  a  house  in  or  near  the  Leith  Wynd  of  Edinburgh,  the  occupant 
or  occupants  of  said  house  being  to  the  prosecutor  unknown,  wickedly 
and  feloniously,  stolen  and  theftuously  taken  away' from  the  pocket  or 
person  of  James  Cairns,  a  mason,  then  and  now  or  lately  residing  in 
Home  Street  of  Edinburgh,  a  silver  watch,  the  property,  or  in  the  lawful 
possession,  of  the  said  James  Cairns  :  As  also  (7.))  on  the  night  of  the 
7th,  or  morning  of  the  8th,  day  of  July  1848,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  June  immediately  preceding,  or  of  August 
immediately  following,  some  person  or  persons  to  the  prosecutor  un- 
known, having,  within  or  near  a  house  in  or  near  the  Leith  Wynd  of 
Edinburgh,  the  occupant  or  occupants  of  said  house  being  to  the  pro- 
secutor unknown,  wickedly  and  feloniously,  stolen  from  George  Simp- 
son, then  and  now  or  lately  a  servant  in  the  employment  of  Thomas 
Macdougal  Brisbane,  Esquire,  and  then  and  now  or  lately  residing  at 
Brisbane,  in  the  parish  of  Largs,  and  county  of  Ayr,  a  silver  watch, 
the  property,  or  in  the  lawful  possession,  of  the  said  George  Simpson  : 
As  ALSO  (8.),  on  the  2d  day  of  August  1848,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  July  immediately  preceding,  or  of  September 
immediately  following,  some  person  or  persons  to  the  prosecutor  un- 
known, having,  within  or  near  a  house  in  or  near  the  Leith  Wynd  of 
Edinburgh,  the  occupant  or  occupants  of  said  house  being  to  the  pro- 
secutor unknown,  wickedly  and  feloniously,  stolen  and  theftuously 
taken  ?.way  from  the  pocket  or  person  of  Koderiok  M'Kenzie,  plate- 
layer, then  and  now  or  lately  residing  with  John  Jenkinson,  farm-ser- 
vant, at  Ballencrieff,  in  the  parish  of  Aberlady,  and  county  of  Had- 
dington, a  silver  watch,  the  property,  or  in  the  lawful  possession,  of 
the  said  Eoderick  M'Kenzie  :  As  also  (9.),  on  the  22d  day  of  August 
1848,  or  on  one  or  other  of  the  days  of  that  month,  or  of  July  imme- 
diately preceding,  or  of  September  immediately  following,  Alexander 
M'Kay  and  Thomas  Ogilvie,  both  now  or  lately  prisoners  in  the  prison 
of  Edinburgh,  or  some  other  person  or  persons  to  the  prosecutor  un- 
known, having  wickedly  and  feloniously  stolen  and  theftuously  car- 
ried away  from  the  house  in  Hanover  Street,  in  or  near  Edinburgh, 
then  and  now  or  lately  pcoupied  by  James  Gravett,  flesher,  then  and 
now  or  lately  residing  there,  a  brooch,  the  property,  or  in  the  lawful 
possession,  of  the  said  James  Gravett :  As  also  (10.),  on  the  30th  day 
of  August  1848,  or  on  one  or  other  of  the  days  of  that  month,  or  of 


152  CASES  BEFORE  THE  HIGH  COURT 

No.  17.    J"ty  immediately  preceding,  or  of  September  immediately  following, 
John      some  person  or  persons  to  the  prosecutor  unknown,  having,  at  some 
and  Mary  plS'Ces  within  or  near  Edinburgh,  the  particular  place  being  to  the  pro- 
Hamilton^  secutor  unknown,  wickedly  and  feloniously,  stolen  and  theftuously 
High  Court,  taken  away  from  the  pocket  or  person  of  "William  Clark,  spirit-dealer 
*!.*"•  ^"     in  the  Low  Calton,  in  or  near  Edinburgh,  then  and  now  or  lately  re- 

'■ — '- —  siding  there,  a  gold  watch,  a  gold  chain,  and  a  key,  the  property,  or 

Theft  '"  *^®  lawful  possession,  of  the  said  William  Clark ;  you  the  said  John 
Hamilton  and  Mary  Garden  or  Hamilton  did,  both  and  each,  or  one 
or  other  of  you,  within  the  period  between  the  dates  respectively  above 
libelled,  as  the  dates  of  the  thefts  respectively  above  libelled,  and  the 
7th  day  of  September  1848,  and  within  or  near  the  house  or  premises 
in  theTCanongate  above  libelled,  then  and  now  or  lately  occupied  by 
you,  or  one  or  other  of  you,  or  at  some  other  place  or  places  to  the 
prosecutor  unknown,  the  particular  time  and  place  being  to  the  prose- 
cutor unknown,  wickedly  and  feloniously,  reset  and  receive  the  several 
articles  above  libelled,  or  part  thereof,  the  same  having  been  respec- 
tively stolen  as  above  libelled,  you  well  knowing  the  same  to  have 
been  stolen : 


The  evidence  against  the  pannels  consisted  of  the  per- 
sons who  had  been  robbed  of  the  various  articles  libelled, 
and  the  police,  M^ho  had  found  the  articles  concealed  in 
a  secret  hole  in  the  wall  of  Hamilton's  house,  with  the 
exception  of  one  watch,  which  was  found  on  the  person 
of  the  female  prisoner,  by  the  female  searcher  at  the 
police  station. 

It  was  not  shewn  when  or  where  any  of  the  articles 
had  been  resetted. 

The  occupation  of  the  male  prisoner  was  that  of  a 
hawker,  and  his  wife  usually  took  charge  of  the  shop 
and  premises  in  Edinburgh,  where  the  police  found  the 
articles. 

MoNCREiFF,  for  the  female  prisoner,  contended  that 
there  was  no  evidence  against  her.  The  fact  of  the 
watch  having  been  concealed  on  her,  was  perfectly  con- 
sistent with  her  innocence,  as  she  might  have  secreted  it 
during  the  search,  in  order  to  screen  her  husband,  and 
as  to  the  other  articles,  it  had  not  been  shewn  that  they 
were  ever  in  her  separate  possession,  so  as  to  infer  any 
guilt  against  her. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  153 

The  Lord  Justice-Clerk  directed  the  Jury,  that  if    No.  17. 

•'  John 

they  thought  the  woman  had  merely  concealed  the  watch  Hamuton 
to  screen  her  husband,  and  had  had  no  concern  in  the  HamiitOTf. 
resetting  of  it,  whether  as  managing  the  shop  or  other-  High  Court, 
wise,  they  must  acquit  her.     No  doubt,  a  married  wo-    '^^Igl 
man  was  answerable  criminally  for  any  act  of  reset  of  K«setof 
theft  of  which  she  was  guilty,  whether  as  sole  actor  or     ''^''^^*- 
art  and  part  therein.     But  it  would  not  be  enough  to 
infer  that  she  was  so  guilty,  if,  after  the  offence  had  been 
committed,  she  endeavoured  to  assist  her  husband  in 
avoiding  detection  by  concealing  the  article.    Every  such 
case,  however,  depended  on  the  actual  facts,  of  which 
the  Jury  were  to  judge. 

The  Jury  found  John  Hamilton  guilty,  and  the  libel 
not  proven  against  the  woman. 

In  respect  of  which  verdict  of  assize,  the  said  John 
Hamilton  was  sentenced  to  be  transported  for  ten  years, 
and  the  said  Mary  Garden  or  Hamilton  was  assoilzied 
simpliciter,  and  dismissed  from  the  bar. 


Present, 

Feb.  6. 

The  LoBD  Justice-Clerk,  1849. 

Lords  Moncbeiff  and  Cockburn. 
Her  Majesty's  Advocate — Craufurd  A.D. — E.  F.  Maitland  A.D. 

AGAINST 

Alexander  James  Petty  Menzies. — Moncreiff. 

Falsehood,  Fraud,  and  Wilful  Imposition — Forgery. — 1.  Direc- 
tion to  the  Jury  as  to  what  was  necessary  to  support  a  charge  of 
Falsehood,  Fraud,,  and  Wilful  Imposition.  Held,  2d,  That  it  was 
sufficient,  in  the  absence  of  counter  proof,  to  establish  that  the 
Christian  name  of  the  prisoner  was  different  from  that  which  he  had 
used  on  the  forged  instrument,  that  he  had  given  another  name  to 
the  Sheriff,  and  answered  to  the  indictment  framed  conform  thereto. 
3d,  That  the  crime  of  forgery  is  committed  by  the  use  of  a  false 

I  Christian  name,  if  that  be  used  with  the  intention  to  mislead. 

L 


154  CASES  BEFORE  THE  HIGH  COURT 

No.  18.        Alexander  James  Petty  Menzies,  was  charged  with 
J.  p.     Falsehood,  Fraud,  and  Wilful  Imposition ;  as  also,  with 
-;-!^!l!l-  Forgery ;  and  al^,  with  Uttering  Forged  Writings  : 

1848.'         ^^  SO  FAR  AS  (1.)  On  several  occasions  between  the  23d  day  of  July 
■p  and  3d  day  of  September    1848,  the  particular  day  or  days  being  to 

&c.  the  prosecutor  unknown,  and  within  or  near  the  shop  or  premises  in 
West  Eegister  Street  of  Edinburgh,  then  and  now  or  lately  occupied 
by  George  Vallance,  breeches-maker  and  glover  there,  you  the  said 
Alexander  James  Petty  Menzies  did,  wickedly,  falsely,  fraudulently, 
and  feloniously,  represent  and  pretend  to  the  said  George  Vallance, 
and  to  Walter  Vallance  and  George  Vallance  junior,  sons  of,  and  then 
and  now  or  lately  residing  with,  the  said  George  Vallance,  or  to  one 
or  more  of  them,  that  you  were  Mr  Lockhart  Menzies,  a  member  or 
relative  of  the  family  of  Menzies  of  Castle-Menzies,  in  Perthshire,  and 
an  officer  of  the  Third  Light  Dragoons,  and  you  did  by  these  and  the 
like  false  representations  and  pretences,  wilfully  and  wickedly  impose 
upon  the  said  George  Vallance,  Walter  Vallance,  and  George  Val- 
lance junior,  or  one  or  more  of  them,  and  did  thereby  prevail  upon  and 
induce  the  said  George  Vallance  to  advance  on  credit  to  you  from 
time  to  time,  during  the  period  above  libelled,  clothes  and  other  fur- 
nishings to  the  amount  of  £27,  19s.  6d.,  sterling,  or  thereby,  which 
you  did  not  pay  or  account  for  to  the  said  George  Vallance,  but  ap- 
propriated to  your  own  uses  and  purposes,  whereby  the  said  George 
Vallance  was  defrauded  and  wilfully  imposed  upon  by  you  the  said 
Alexander  James  Petty  Menzies :  Likeas  (2.),  on  several  occasions 
between  the  23d  day  of  August  and  14th  day  of  September  1848,  the 
particular  days  being  to  the  prosecutor  unknown,  and  within  or  near 
the  shop  or  premises  in  or  near  George  Street,  Edinburgh,  then  and 
now  or  lately  occupied  by  the  Company  or  firm  of  Meyer  and  Morti- 
mer, then  and  now  or  lately  army  and  navy  contractors  and  clothiers 
there,  you  the  said  Alexander  James  Petty  Menzies  did,  wickedly, 
falsely,  fraudulently,  and  feloniously,  represent  and  pretend  to  John 
Mortimer,  then  and  now  or  lately  a  partner  of  the  said  company  or 
firm,  and  then  and  now  or  lately  residing  in  or  near  George  Street 
aforesaid,  and  to  Donald  Munro,  then  and  now  or  lately  clerk  to  the 
said  company  or  firm,  and  then  and  now  or  lately  residing  in  or  near 
Castle  Street,  Edinburgh,  or  to  one  or  other  of  them,  that  your  name 
was  Lockhart,  and  that  you  were  a  lieutenant  or  other  officer  in  the 
Seventy-Eight  Regiment,  and  did  thereby  prevail  upon  and  induce  the 
said  John  Mortimer  and  Donald  Monro,  or  one  or  other  of  them,  or 
other  person  or  persons  acting  for  the  said  company  or  firm,  to  advance 
on  credit  to  you,  from  time  to  time,  during  the  period  last  above  li- 
belled, clothes  and  other  furnishings,  and  lent  cash,  to  the  amount  of 
£9,  lis.  sterling,  or  thereby,  which  you  did  not  pay  or  account  for  to 
the  said  John  Mortimer,  or  to  any  other  person  for  behoof  of  the  said 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  155 

company  or  firm,  but  appropriated  to  your  owu  uses  and  purposes,    No.  la, 
whereby  the  said  John  Mortimer,  and  the  said  company  or  firm,  were       j_  p_ 
defrauded  and  wilfully  imposed  upon  by  you  the  said  Alexander   Menaies. 
James  Petty  Menzies:  Likeas  (3.),  on  the  23d  day  of  August  1848,  High  Court- 
or  on  one  or  other  of  the  days  of  that  month,  or  of  July  immediately     ■^^^'g*' 

preceding,  or  of  September  immediately  following,  you  the  said  Alex-  '. — 

ander  James  Petty  Menzies  having  written  or  procured  to  be  written,  '""^S^t 
a  bill  of  exchange  or  other  similar  writing  for  £30  sterling,  bearing  to 
be  dated  '  Edinburgh  23*  August  1848,'  and  to  be  payable  two  months 
after  date,  and  to  be  drawn  by  Moritz  Cohnert,  and  to  be  addressed, 
'  To  Grenville  A  Lockhart  Esq'.,  78  Highlanders  at  Taits  Hotel 
'  Edinburgh,'  you  the  said  Alexander  James  Petty  Menzies  did,  time 
last  above  libelled,  and  in  or  near  the  shop  or  premises  in  or  near  Leith 
Street,  in  or  near  Edinburgh,  then  and  now  or  lately  occupied  by 
Moritz  Cohnert,  then  and  now  or  lately  jeweller  there,  and  then  and 
now  or  lately  residing  in  or  near  St  James'  Square,  in  or  near  Edin- 
burgh, or  at  some  other  place  in  or  near  Edinburgh,  to  the  prosecutpr 
unknown,  wickedly  and  feloniously,  forge  and  adhibit,  or  cause  and 
procure  to  be  forged  and  adhibited,  upon  the  said  bill  of  exchange  or 
other  similar  writing,  the  subscription  '  G.  A.  Lockhart  L*  78*  Reg^,' 
as  acceptor,  intending  the  same  to  pass  for  and  to  be  received  as  the 
genuine  subscription  of  Graeme  Alexander  Lockhart,  then  and  now  or 
lately  lieutenant  in  Her  Majesty's  78th  Begiment  of  Foot,  then  and 
now  or  lately  in  India,  or  elsewhere  to  the  prosecutor  unknown,  or  of 
some  other  person  of  the  name  of  Lockhart  to  the  prosecutor  unkuowny 
or  the  same  being  a  fictitious  subscription  :  Farther,  time  last  above- 
libelled,  and  within  or  near  the  shop  or  premises  aforesaid,  then  and 
now  or  lately  occupied  by  the  said  Moritz  Cohnert,  you  the  said  Alex- 
ander James  Petty  Menzies  did,  wickedly  and  feloniously,  use  and 
utter  as  genuine,  the  foresaid  forged  bill  of  exchange  or  other  suailap 
writing,  having  thereon  the  said  forged  subscription,  yxm  well  knowit^ 
the  same  to  be  forged,  by  then  and  there  delivering-  the  same  as  a 
genuine  bill  to  the  said  Moritz  Cohnert,  in  paymen<t  of  the  price  of 
various  articles  of  jewellery,  and  in  repayment  of  various  advances  of 
cash  to  you  by  the  said  Moritz  Cohnert :  Likeas-  (4.),  on  the  13th 
day  of  September  1 848,  or  on  one  or  other  of  the  days  of  that  m-anth, 
or  of  August  immediately  preceding,  or  of  October  immediately  fol- 
lowing, you  the  said  Alexander  James  Petty  Menzies- having  written, 
or  procured  to  be  written,  a  bill  of  exchange  or  other  similar  writing, 
for  £4.9  sterling,  bearing  to  be  dated  'Edinburgh  13  Sep'  1848,' 
and  to  be  payable  one  mouth  after  date,  and  to  be  addressed,  '  To 
'  Mess  Cox  &  Co.  Craig's  Court  Charing  Cross  London,'  did,  time 
last  above  libelled,  and  in  or  near  the  hotel  or  premises-  in  or  near 
Princes  Street,  Edinburgh,  then  and  now  or  lately  occupied  by  James 
Tait,  then  and  now  or  lately  hotel-keeper,  residing  these,  wickedly 
and  feloniously,  forge  and  adhibit,  or  and  cause  procure  to  be  forged 


&e. 


156  CASES  BEFORE  THE  HIGH  COURT 

No.  18.     and  adhibited,  upon  the  said  bill  of  exchange  or  other  similar  writing 
Alexander  j^gj.  ^^^^^  libelled,  the  subscription  '  Lockhart  Menzies,'  or  other  si- 
Menzies.    milar  subscription,  as  drawer  and  indorser,  intending  the  same  to  pass 
High  Court  ^"'  ^^^  *°  ^®  received  as  the  genuine  subscription  of  some  person  of 
Feb.  5.     the  name  of  Lockhart  Menzies  to  the  prosecutor  unknown,  or  the  same 
'*^'      being  a  fictitious  subscription  :  Farther,  time  last  above  libelled,  and 
Forgery,   in  or  near  the  hotel  or  premises  aforesaid,  then  and  now  or  lately  oc- 
cupied by  the  said  James  Tait,  you  the  said  Alexander  James  Petty 
Menzies  did,  wickedly  and  feloniously,  use  and  utter  as  genuine  the 
forged  bill  of  exchange  or  other  similar  writing  last  above  libelled, 
having  thereon  the  said  forged  subscriptions,  you  well  knowing  the 
same  to  be  forged,  by  then  and  there  delivering  the  same,  or  causing 
or  procuring  the  same  to  be  then  and  there  delivered  to  the  said  James 
Tait,  in  payment  of  an  account  for  board  and  lodging  incurred  by  you 
to  the  said  James  Tait. 

The  pannel  was  indicted  under  the  name  he  gave  to 
the  Sheriff  when  he  emitted  his  declaration ;  and  the 
Public  Prosecutor  did  not  adduce  any  other  evidence 
to  show  that  his  name  was  not  Lockhart  Menzies,  as 
subscribed  by  him  on  the  bills. 

The  evidence  of  the  first  charge  was  as  follows  : — 

Walter  Vallance. — One  of  our  shopmen  was  sent  for  on  24th 
July,  to  measure  a  gentlemen  at  Tait's  Hotel  for  trowsers.  The  pri- 
soner came  to  the  shop  a  few  days  after  :  he  was  then  wearing  the 
trowsers  made  on  account  of  this  order.  He  said  we  might  as  well 
take  his  address  in  the  country,  which  was  Lockhart  Menzies,  Esq., 
Rannoch  Lodge,  Perthshire.  This  was  all  that  took  place.  He 
ordered  more  clothes  at  that  time.  I  often  saw  him  after.  Shortly 
before  the  Agricultural  Ball,  he  said  he  thought  of  going  to  the  ball 
in  the  uniform  of  his  regiment.  I  said  what  regiment  ?  he  said.  Third 
Light  Dragoons.  He  did  not  get  a  uniform,  but  afterwards  came  and 
ordered  a  dress  suit.  He  ordered  a  coat  of  the  uniform  of  a  racing 
club.  The  account  shown,  £27 :  19  :  6,  is  ours.  During  his  dealings, 
we  believed  him  Mr  Lockhart  Menzies,  and  an  officer  of  the  Third. 
We  made  furnishings  in  consequence.  We  knew  Rannooh  Lodge  be- 
longed to  Sir  Robert  Menzies,  and  believed  hira  a  relation.  We  be- 
gan to  suspect,  because  a  brother  tradesman  said  he  had  received  the 
name  of  Lockhart  from  him. 

George  Vallance  corroborated  the  above,  and  deponed  that  the 
prisoner  in  August  said  he  was  in  the  Third  Light  Dragoons,  and  it 
would  cost  him  £300  to  exchange  into  a  regiment  at  home. 

MoNCREiFF. — :It  was  a  point  of  law,  calling  for  direc- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  157 

tion  by  the  Court,  whether,  when  a  person  signed  his    No.  i^s^^ 
own  surname,  but  used  a  prefix  which  was  not  his  own,     J.  p. 

Af  6112168 

that  was  forsrery.     The  question  was  not  whether  he — 

1     •  1    ,  .1  1  111      HighCourt. 

was  christened  by  a  particular  name,  but.  whether  he    Feb.  s. 

committed  the  act  with  the  intention  of  forgery.     It  was  '— 

not  the  case  of  a  fictitious  signature,  but  that  "of  assum-  °&t^^' 
ing  a  prefix  which  he  thought  better  than  his  own.  This 
was  often  done  most  innocently ;  and  in  order  to  estab- 
lish the  prisoner's  guilt,  the  Jury  must  believe  that  it 
was  done  by  him  in  circumstances  where,  if  he  had 
signed  his  own  christian  name,  credit  would  not  have  been 
given  him.  But  farther,  the  prosecutor  had  failed  to 
show,  except  by  the  prisoner's  declaration,  which  alone 
was  not  proof,  that  the  prisoner's  name  was  riot  Lockhart 
Menzies. 

The  Lord  Justice-Clerk,  in  summing  up,  said — It  is 
contended  there  is  no  proof  that  the  prisoner  is  not 
Lockhart  Menzies.  This  is  not  the  question  in  issue. 
He  is  indicted  under  a  particular  name,  and  answers  to 
it.  When  examined,  he  says  that  is  his  name  ;  and  it 
is  clear,  if  a  person  gives  a  name  to  the  Sheriff  as  his 
name,  the  prosecutor  is  entitled  to  indict  him  under 
that  name.  If  the  defence  is,  that  that  is  not  his  name, 
it  was  his  business  to  have  proved  it,  supposing  that  it 
could  have  availed  him. 

The  next  observation  I  have  to  make  to  you  is,  that  the 
most  successful  means  of  making  a  false  representation,  is 
not  to  volunteer  such  a  statement  as  "  I  am  Mr  Lockhart 
Menzies,  a  relation  of  Sir  Robert,  and  an  officer  in  the 
Third  Light  Dragoons."  It  is  by  the  way  and  manner 
in  which  circumstances  are  conveyed  to  the  mind,  incor- 
rect in  themselves,  but  which  the  party  knows  will  have 
weight  with  the  persons  interested.  It  is  sufficient, 
therefore,  that  the  representation  is  conveyed  to  the 
mind  in  an  indirect  manner,  by  conduct  calculated  to 
leave  the  impression  that  the  person  is  what  he  holds 
himself  out  to  be.  No  doubt,  it  must  be  proved  that 
some  person  was  thereby  imposed  upon  and  trusted  oii 


158  CASES  BEFORE  THE  HIGH  COUKT 

No.  18.    that  account.     In  this  case,  though  the  witnesses  were 
J.  p.     not  directly  asked  whether  they  trusted  in  consequence 
-  of  this  representation,  you  will  consider  if  this  may  be 


Feb.  sT*"  sufficiently  inferred,  as,  except  the  first  two  items  in  the 
^"^^'     account  of  Vallance,  all  the  particulars  of  the  account  are 

Fo^ery,,  incuj-j-eij  after  the  3d  August  when  the  statements  were 
made.  That  is  the  evidence  on  the  first  charge,  and  you 
who  understand  business,  will  say  whether  the  represen- 
tation was  intended  to  mislead  the  tradesman.  It  is  not 
necessary  that  the  account  should  be  commenced,  if  it  is 
continued  on  the  credit  that  the  prisoner  is  Mr  Lockhart 
Menzies,  and  an  officer  of  Third  Light  Dragoons. 

In  regard  to  the  question  of  forgery,  I  must  tell  you, 
it  is  not  a  question  about  the  credit  given  in  the  hotel. 
It  is  a  question  about  forging  a  name  to  a  bill,  and 
uttering  the  same  as  genuine.  The  charge  is  of  forging 
a  name  that  he  knows  to  be  fictitious.  It  is  said,  that 
in  signing  Lockhart  Menzies,  whether  he  took  a  wrong 
Christian  name  or  not,  he  signed  his  own  surname,  and 
this  is  not  a  fictitious  signature,  and  so  the  crime  of  for- 
gery is  not  made  out.  But  this  bill  is  written  and  ad- 
dressed by  him ;  he  giving  as  the  place  of  payment  the 
office  of  Cox  &  Co.  He  signed  Lockhart  Menzies,  and 
if  you  believe  that  the  object  of  that  was  to  convey  to 
Tait  and  his  clerk  the  impression  that  he  was  Mr  Lock- 
hart Menzies,  who  had  funds  at  Cox's,  that  is  the  crime 
of  forgery.  For  forgery  and  uttering  are  completed  by 
subscribing  a  name  of  a  person  supposed  to  have  money 
at  a  banker's,  and  uttering  it  as  such.  Therefore,  in 
point  of  law,  if  you  are  satisfied  that  the  name  subscribed 
to  the  bill  was  intended  to  be  that  of  another  person 
than  himself,  and  who  was  supposed  to  have  money  at 
Cox's,  then  the  crime  of  forgery  is  complete. 

The  Jury  unanimously  found  the  pannel  guilty   as 
libelled. 

In  respect  of  which  verdict  of  assize,  he  was  sentenced 
to  be  transported  for  seven  years. 


AND  CIKCUIT  COVETS  OF  JUSTICIARY.  159 

Present, 
The  Lord  Justice-Clerk, 
Lords  Moncreiff,  Medwyn,  Cockbubn,  and  Wood.  1B49. 

John  Meekison  and  Tutor,  Suspenders — Deaa. 

AGAINST 

Donald  Mackay,  Respondent — Neaves. 
("Sequel  of  Case  reported,  ArHey,  p.  503. 

Police  Court — Suspension. — Circumstances  in  which  it  was  held  to 
be  incompetent  to  try  children,  of  the  ages  of  ten  and  twelve,  in  the 
Police  Court,  in  the  absence  of  their  parents,  whose  residences  were 
well  known. 

This  case  came  to  be  disposed  of  on  the  commissioner's    no  is 
report  of  the  proof.  ,S°or 

Deas,  for  the  suspenders,  contended, — 1.  That  it  was  '°-  Mackay. 
established  by  the  proof,  that  the  parents  of  the  child  ^^^jj,*^""'" 
were  excluded  at  the  time  the  original  complaint  was     i8*»- 
heard.     2.  That,  whether  that  was  established  or  not,  it  suspension, 
was  incompetent  to  proceed  to  convict  a  child  at  the  age 
of  ten  years  of  such  an  offence,  summarily,  and  in  the 
absence  of  his  parents,  whose  residence  was  well  known 
to  the  police. 

Lord  Medwyn. — This  is  a  very  painful  case.  The 
question  for  us  to  determine  is,  whether  the  complainer's 
parents  were  excluded  from  the  police  office  at  the  time 
he  was  convicted.  If  this  had  been  done,  no  doubt  it 
would  have  been  enough  to  justify  a  suspension.  I,  how- 
ever, do  not  think  it  was.  It  was  the  duty  of  his  parents 
to  be  present  at  the  first  hour  when  the  magistrates  sat, 
and  to  continue  in  attendance  until  the  case  was  brought 
on.  It  is  not  shewn  that  there  was  any  irregularity  in  the 
way  of  bringing  on  the  case,  and  I  cannot  say  that  there- 
was  any  duty  on  the  part  of  the  police,  either  to  advise 
her  to  remain  until  the  case  was  called^  or  to  give  her^ 


160  CASES  BEFORE  THE  HIGH  COURT 

No.  19.    any  particular  introduction  into  the  office  when  she  came 
and  Tutor  back  with  her  witness.     On  the  whole,  I  cannot  think 

D.  Mackay.     ,  .  ,  i     i     i 

— ; she  was  improperly  excluded. 

rib.  is."^'      Lord  Cockburn. — The  proof,  no  doubt,  is  insufficient 
^"^^'     to  establish  an  exclusion  of  the  complainer's  parent.     So 

Suspension.  ^^^  ^^^  grouuds  of  suspeusion  are  not  only  not  proved, 
but  disproved.  But  it  is  my  duty  to  say,  that  this  is 
not  a  case  which  ought  to  have  been  sent  to  the  Police 
Court.  Suppose,  for  argument,  that  the  hour  at  which 
what  is  styled  the  offence  was  committed,  was  half-past 
three,  during  public  worship,  what  does  that  matter  ? 
Here  are  two  children,  or  creatures,  only  about  ten  years 
old,  found  playing  at  marbles,  and  rejoicing  at  the  skill 
they  shewed  in  shooting  into  a  hole.  They  are  taken 
hold  of  by  the  police,  and  although  he  knew  the  parents, 
instead  of  seeking  them,  he  takes  the  children  and  locks 
them  up  till  next  morning,  amongst  the  worst  vagabonds 
of  the  town.  I  feel  it  incumbent  upon  me  as  a  judge 
to  say,  that  I  protest  against  such  a  proceeding.  It  was 
an  abuse  to  take  and  lock  up  two  such  children  when 
their  parents  were  well  known.  It  was  an  outrage  on 
all  proper  feeling,  and  especially  on  all  those  feelings  on 
which  it  professed  to  proceed,  in  reference  to  the  due 
observance  of  the  Sabbath.  The  crime  committed  by 
the  officers  was  infinitely  greater  than  the  one  imputed 
to  the  infants ;  and  I  hope  never  again  to  see  Sunday 
protected  by  such  unchristian  proceedings.  On  these 
grounds,  I  am  for  sustaining  the  suspension. 

Lord  Wood. — The  proof  establishes  that  the  com- 
plainer's mother  was  not  refused  admittance  to  the  office  ; 
but  I  concur  with  Lord  Cockburn,  on  the  general  point 
of  the  impropriety  of  the  whole  proceedings.  No  doubt, 
cases  might  be  supposed  where  the  interference  of  the 
police  was  absolutely  necessary,  even  against  children  of 
their  age ;  but,  in  my  opinion,  it  was  exceedingly  impro- 
per to  take  these  children  to  the  police  office  for  such  an 
offence,  lock  them  up  the  whole  of  Sunday  evening,  and 
try  theni  on  the  following  morning,  in  the  absence  of 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  161 

their  parents,  whose  residence' was  well  known.     I  en-    no.  is. 
tirely  disapprove  oi  such  a  mode  of  proceeding,  and  all  ^a  Tutor 
that  followed  thereon.  "•  ^^"W- 

The  Lord  Justige-Clerk.— I  think  the  proof  estab-  ^F^b!^i'^'- 
lishes  that  the  mother  applied  for  access  and  was  re-  1^49. 
fused.  I  think  this  established  by  the  real  and  posi-  Suspension, 
tive  testimony  in  the  case.  I  also  agree  in  quashing  the 
sentence,  as  an  illegal  and  oppressive  proceeding,  on  the 
grounds  stated  by  Lords  Cockburn  and  Wood.  I  con- 
sider it  extremely  wrong  on  the  part  of  the  police  to 
have  proceeded  to  try  and  convict  these  children  in  the 
absence  of  their  parents.  These  Inferior  Courts  must  be 
restrained  when  they  proceed  to  punish  such  young  chil- 
dren, in  such  a  way.  It  is  right  to  make  it  known 
that  we  shall  quash  all  convictions  so  obtained.  I  sus- 
tain the  complaint,  on  the  ground  of  the  express  terms  in 
which  it  was  prepared ;  but  no  conviction  ought  ever  to 
have  followed  on  the  evidence  which  was  adduced,  and 
no  magistrate  ought  ever  to  have  encouraged  any  police- 
man to  prefer  such  a  complaint. 

Lord  Medwyn. — I  also  concur  in  condemning  the 
proceedings.  The  police,  knowing  the  parents  of  the 
children,  ought  to  have  gone  to  them,  and  not  have 
taken  the  children  to  the  office,  or  tried  them  at  all. 

The  Court  passed  the  note  of  suspension. 

WoTHBRSPooM  &  Mack,  S.S.C. — Lockhabt,  Huntek  &  Whitehead,  Agents. 


John  Lockie,  Suspender — Deas. 

AGAINST 

John  M'Whirteb,  Kespondent — Neaves — Aytoun. 

Statute. — Held,  that  under  the  203d  seetiou  of  the  Glasgow  Police 
Act,  that  it  was  necessary  to  libel  that  the  coals  had  been  sold  and 
delivered  within  the  limits  of  the  act,  and  a  sentence  proceeding  on 
an  alternative  libel  suspended. 


162 


CASES  BEFORE  THE  HIGH  COURT 


No.  20.  This  was  a  certified  Appeal  from  the  Circuit  Court  at 
M'Whirter.  Glasgow.  It  arose  under  the  following  circumstances : — 
HighCourt.  By  the  Glasgow  Police  Act,^  the  Commissioners  of  Police 

Feb.  IS.        "^  ° 


1849. 


Suspension. 


1  By  the  Act  6th  &  7th  Vict.  c.  99,  §  203,  it  is  enacted,  '  That 
it  shall  not  be  lawful  to  any  person  to  sell  or  dispose  of  coals  -within 
the  limits  of  this  act,  except  by  weight ;  and  the  said  Board  of  Com- 
missioners shall  be,  and  they  are  hereby  empowered  and  authorized 
to  erect,  so  far  as  not  already  done,  and  to  maintain  steel-yards, 
scales,  or  other  weighing-machines,  upon,  or  adjacent  to  the  different 
roads  or  streets,  within,  or  leading  to  the  said  limits,  or  at  any  other 
convenient  place,  for  the  purposes  hereinafter  mentioned,  or  to  grant 
powers  to  others  to  that  effect,  and  to  appoint  proper  persons  to  at- 
tend the  same,  with  suitable  allowances  for  their  trouble ;  and  to 
order  and  appoint  every  cart  or  waggon  employed  for  the  carriage 
of  coals  for  sale  within  the  said  limits,  to  be  numbered  and  weighed, 
and  recorded  in  a  book  to  be  kept  for  that  purpose  within  the  said 
limits,  under  the  direction  of  the  said  Board  of  Commissioners,  and 
the  number  and  tare  to  be  painted  or  inscribed  on  a  conspicuous  part 
of  such  cart  or  waggon,  and  in  such  manner  as  the  said  Board  shall 
direct ;  and  no  cart  or  waggon  shall  be  used  in  the  carriage  of  coals 
for  sale,  until  the  weight  or  tare  of  such  cart  or  waggon  shall  be  as- 
certained, recorded,  and  inscribed  as  aforesaid ;  nor  be  afterwards 
altered  in  the  weight  or  tare  thereof,  further  than  may  be  occasioned 
by  wet  roads,  under  a  penalty  not  exceeding  twenty  shillings ;  and 
every  such  cart  or  waggon  loaded  with  coals  for  sale  or  delivery, 
(except  for  shipment  at  the  Broomielaw)  within  the  said  limits  shall 
be  weighed  at  the  said  steel-yards,  or  weighing-machines,  and  the 
weight  of  the  coals,  and  of  the  cart  or  waggon,  and  also  the  time  of 
such  weighing,  shall  be  marked  on  a  ticket  to  be  delivered  to  the 
driver ;  and  the  person  having  the  charge  of  such  steel-yards,  or 
weighing-machines,  shall  exact  from  the  driver  the  sums  following, 
viz.,  for  each  cart  not  exceeding  twelve  hundred  weight,  one  penny : 
for  each  cart  and  a  half,  not  exceeding  eighteen  hundred  weight,  three 
halfpence ;  and  for  each  waggon,  not  exceeding  twenty-four  hundred 
weight,  twopence,  for  weighing  the  coals,  and  delivering  tickets  as 
aforesaid,  and  for  erecting  and  keeping  in  repair  the  said  steel-yards 
and  weighing-machines  ;  which  sums  shall  be  repaid  to  the  drivers 
by  the  purchasers  of  the  coals,  or  persons  to  whom  the  same  are  de- 
livered, on  the  ticket  thereof  being  produced ;  and  the  property  of 
such  steel-yards  or  weighing-machines,  shall  be,  and  is  hereby  vested 
in  the  said  Board  of  Commissioners  :  And  if  any  carter  or  other 
person  shall  bring,  within  the  limits  of  this  Act  any  cart  or  waggon 
with  coals,  exceeding  five  hundred  pounds  weight,  and  shall  sell  or 
deliver,  or  attempt  to  sell  such  coals,  without  first  having  the  same 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  163 

are  authorized  to  erect  and  maintain  steel-yards  for  the    No.  20. 
weighing  of  coals,  and  every  person  attempting  to  sell  or  M'Wuirte'r. 
deliver,  within  the  limits  of  the  act,  coals  in  quantities  High  Court. 

Feb.  IS. 
— _— . 1849. 

'  weighed,  and  a  ticket  procured  as  aforesaid,  such  carts  or  waggons  Suspension. 

'  may  be  seized,  and  the  coals  therein  may  be  declared  forfeited,  and 

'  the  proceeds  applied  in  the  same  manner  as  the  penalties  under  this 

'  Act,  but  the  carts  or  waggons  shall  be  returned  to  the  owner  or 

'  driver  ;  and  if  such  coals  shall  have  been  sold  and  delivered,  without 

'  having  been  weighed,  and  a  ticket  procured  as  aforesaid,  such  driver 

'  may  be  subjected  in  a  penalty  not  exceeding  forty  shillings,  besides 

'  having  the  coals  confiscated  ;  and  it  shall  be  lawful  to  the  Superiu- 

'  tendent  and  officers  of  police  to  seize  any  cart  or  waggon  with  coals, 

'  which  have  not  been  weighed,  and  a  ticket  procured,  as  aforesaid, 

'  and  to  detain  the  same  until  the  penalty  and  the  expenses  attending 

'  the  proceedings  shall  be  paid.'     (§  204),  '  That  it  shall  be  lawful  to 

'  the  said  Board  of  Commissioners,  to  provide,  furnish,  and  maintain, 

'  such  a  number  of  portable  or  moveable  machines  for  weighing  coals 

'  as  they  may  deem  necessary,  to  be  kept  in  convenient  places  within 

'  the  said  limits,  in  order  that  the  inhabitants  may  have  access  to  them 

'  for  the  purpose  of  reweighing  their  coals,  at  their  own  expense,  if 

'  they  shall  be  so  inclined  ;    and  to  employ  proper  persons  to  attend 

'  such  machines,  and  to  establish  the  rates  to  be  payable  for  such  re- 

'  weighing ;  and  it  shall  be  lawful  to  the  Superintendent  of  police,  or 

'  Inspector  of  weighing-machines,  or  any  other  officer,  to  cause  coals 

'  oflfered  for  sale,  or  for  delivery,  to  be  reweighed,  and  to  require  the 

'  carter  to  produce  the  ticket  thereof,  as  a  check  on  the  conduct  of 

'  carters  and  others — such  reweighing  being  always  done  free  of  ex- 

'  pense.'     (§  279),  '  That  no  order,  judgment,  record  of  conviction,  or 

'  other  proceeding  whatsoever,  concerning  any  prosecution  by  virtue 

'  of  this  Act,  or  of  any  Act  herein  recited,  shall  be  quashed  or  vacated 

'  for  any  misnomer  or  informality ;  and  that  all  judgments  and  sen- 

'  tences  pronounced  by  the  said  Magistrates,  or  any  of  them,  under 

'  this  Act,  shall  be  final  and  conclusive,  unless  appealed  from  in  man- 

'  ner  hereinafter  provided.'     (§  280), '  That  if  any  person  shall  feel 

'  aggrieved  by  any  sentence  pronounced  by  the  Magistrates,  under 

'  this  Act,  it  shall  be  lawful  for  such  person  to  appeal  to  the  Court  of 

'  Justiciary,  at  the  next  Circuit  Court  to  be  held  at  Glasgow,  or  else- 

'  where,  for  the  Western  Circuit,  in  the  manner  and  under  the  rules, 

'  limitations,  and  conditions  contained  in  an  Act  passed  in  the  twen- 

'  tieth  year  of  the  reign  of  His  Majesty  King  George  the  Second,  in- 

'  tituled, '  An  Act  for  taking  away  and  abolishing  Heritable  Juris- 

"  dictions  in  Scotland ;'  and  it  shall  not  be  competent  to  appeal  from, 

'  or  to  bring  the  judgment  of  the  Magistrates  under  this  Act,  under 

'  review,  by  advocation,  suspension,  suspension  and  liberation,  or  re- 


164  CASES  BEFORE  THE  HIGH  COURT 

No.  20.    exceeding  5  cwt.,  is  required  to  have  them  weighed  at  a 
M'wwrte'r.  steel-jard,  and  to  pay  twopence  for  the  ticket  which  is 
High  Court,  given  him  of  the  weight. 
^\si9^'       '^^^  suspender  was  a  person  regularly  employed  to 
Suspension.  ^^^<i^  coals  (which  had  been  previously  bought)  from  the 
coal-hill,  by  one  of  the  manufacturers  of  Glasgow,  within 
the  limits  of  the  act.     The  Commissioners  insisted  that 
as  the  place  to  which  the  coals  were  brought  was  within 
the  limits,  they  must  be  weighed  and  paid  for  at  two- 
pence per  load.     The  suspender  having  refused  to  com- 
ply with  their  requirements,  the  following  complaint 
was  presented  against  him  by  the  respondent : — 

Police  Court,  Glasgow,  Central  District,  1st  Fehruary  1848. 
'  Unto  the  Honourable  the  Magistrates  of  Glasgow,  the  com- 

'  plaint  of  John  M'Whirter,  Interim  Procurator-Fiscal  of 

'  Court,  for  the  public  interest, 
'  Charges  John  Lockie,  carter,  Parkhead,  near  Glasgow,  with  hav- 
'  ing  contravened  the  201st  section  of  the  Act  entituled,  '  The  Glas- 
"  gow  Police  and  Statute  Labour  Act,'  6th  and  7th  Vict.  c.  99  :  In 
'  so  far  as,  on  Saturday  the  22d  January  last,  the  said  John  Lockie 
'  did  briug  within  the  limits  of  the  said  act  four  carts  or  waggons 
'  with  coals — the  coals  in  each  of  the  said  carts  or  waggons  exceeding 
'  500  pounds  weight,  and  did  on  the  said  date,  in  or  near  Lancefield 
'  Street,  Anderston  of  Glasgow,  and  within  the  said  limits,  sell  or 
'  deliver  'the  said  coals  to  Messrs  Fulton  and  Neilson,  founders, 
'  &c.,  in  said  Street,  without  having  first  had  the  same  weighed  at 
'  one  or  other  of  the  public  weighing-machines  provided  for  the  pur- 
'  pose,  and  without  having  procured  a  ticket  with  the  weight  of  the 
'  coals,  and  of  the  carts  or  waggons,  and  also  the  time  of  such  weighing 
'  marked  thereon,  as  required  by  the  foresaid  section  of  the  said  act ;  for 
'  which  contravention,  tlie  defender,  on  being  legally  convicted,  ought 

'  duction,  or  in  any  way  whatever,  other  than  is  hereby  provided  for, 

'  saving  always  any  right  of  appeal,  or  other  mode  of  review  autho- 

'  rized  by  any  other  Act,  under  which  it  is  by  this  Act  made  lawful 

'  for  the  said   Magistrates,  or  any  of  them,  to  try  crimes  or  offences  : 

'  Provided  always.  That  no  such  appeal  shall  operate  as  a  stay  of 

'  execution  in  cases  where  the  sentence  or  decree  awards  imprison- 

'  ment,  unless  on  sniEcient  caution  for  the  appearance  of  the  party,  in 

'  such  manner  as  the  Judge  shall  direct,  and  that  without  prejudice  in 

'  either  case  to  the  caution  or  security  required  by  the  said  recited 

'  Act.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  165 

'  to  be  punished  in  terras  of  law,  to  deter  others  from  committing  the     jj^^  20. 
'  like  contraventions  in  time  coming.  Lockie  «. 

'  John  M'Whirter.'      M-Whirter. 


High  Com-t. 
Feb.  15. 


When  this  complaint  was  heard,  the  following  sen-     i^^^- 
tence  was  pronounced  : — 

'  The  Bailies  find  unanimously,  from  the  admission  of  the  defender, 
'  and  the  proof  adduced,  that  the  defender  has  contravened  the  201st 
'  section  of  the  Statute,  and  is  liable  in  the  penalty  thereby  imposed  ; 
'  modify  the  same  to  ten  shillings,  and  decern. 

(Signed)  '  Robt.  Stewart. 

'  Robert  Smith. 
'  David  Smith. 
'  John  Gilmour.' 

Lockie  appealed  to  the  Circuit  Court ;  when  it  was 
objected  that  the  act  having  dispensed  with  any  record 
in  the  inferior  Court,  it  was  impossible  to  ascertain 
whether  the  conviction  was  rightful  or  otherwise ;  inas- 
much as  that  must  be  determined,  not  by  the  evidence 
which  might  competently  be  adduced,  but  by  what  was 
adduced  when  the  case  was  heard. 

Lord  Mackenzie  certified  the  case,  which  was  now 
heard. 

Deas,  for  suspender,  contended,  that  as  the  terms  of 
the.  statute  only  rendered  it  imperative  on  the  carters  to 
have  the  coals  weighed  when  the  sale  or  delivery  was 
within  Glasgow,  it  had  no  application  to  the  suspender's 
case,  who  was  a  special  servant  sent  out  to  receive  coals 
which  had  been  previously  bought,  and  of  which  he  re- 
ceived delivery  beyond  the  boundaries.  The  coals  were  his 
employers,  and  so  he  told  the  bailies,  but  they  miscon- 
trued  his  statement  of  having  been  sent  to  bring  coals 
previously  bought,  into  a  confession  of  guilt.  It  was  then 
said  the  Court  could  not  get  at  the  facts,  as  no  record 
was  kept.  That  would  render  review  nugatory.  Every- 
thing necessary  to  give  effect  to  review  was  included  in 
the  right  of  appeal;  Lord  Moncreiff's  opinion  in 
M'PhaiVs  case,  Nov.  20.  1837,  Swinton,  vol.  i.  p.  583. 


166  CASES  BEFORE  THE  HIGH  COURT 

No.  2i).        In  this  case,  the  question  was,  had  not  the  Magistrates 
M'Whirter.  fined  iu  a  case  where  they  had  no  jurisdiction;  and  where 
High  Court,  no  offence  was  committed,  as  both  the  sale  and  delivery 
^1849.^"   took  place  beyond  the  limits  ? 

Suspension  Neaves,  for  respondent — The  case  was  important.  If 
any  person  convicted  could,  under  the  280th  section,  ap- 
peal on  the  merits,  and  have  an  enquiry  into  what  took 
place  at  the  trial,  it  was  difficult  to  understand  why  a 
record  of  the  evidence  was  dispensed  with  by  the  statute. 
The  legislature,  by  dispensing  with  all  record  of  evidence, 
practically  excluded  review  on  the  merits.  There  was  no 
means  whereby  it  could  be  effected,  as  the  enquiry  must 
be  limited  to  what  took  place  at  the  original  hearing. 
No  doubt  insulated  facts,  such  as  improper  admission  or 
rejection  of  a  witness  might  be  enquired  into,  but  no 
case  had  said  that  all  the  merits  could  be  gone  into 
again.  The  only  effect  of  the  appeal  given  by  the 
statute  was  to  put  the  Court  of  appeal  in  the  same  posi- 
tion as  the  Bailies,  and  not  to  enable  them  to  lead  a 
fresh  proof 

The  Lord  Justice-Clerk. — Do  you  contend  we  can- 
not enquire  into  the  evidence,  when  an  allegation  is 
made  that,  on  the  merits,  the  inferior  Court  had  no  juris- 
diction ? 

Neaves. — I  contend  that  all  carters  are  subject  to  the 
tax,  and  that  having  been  convicted  in  part  on  his  own 
confession,  the  Court  cannot  enquire  into  the  terms  in 
which  the  confession  was  made. 

Deas,  in  reply — The  words  of  the  complaint  are  dif- 
ferent from  the  clause  of  the  statute  on  which  it  pro- 
ceeds. The  words  applicable  to  completed  transactions 
are,  '  if  such  coals  shall  have  been  sold  and  delivered ;' 
whilst  the  complaint  on  which  the  conviction  proceeded 
is,  that  the  suspender  did  '  sell  or  deliver  the  coals.' 
That  is  an  alternative  not  warranted  by  the  statute. 

Lord  Moncreiff. — That  is  enough,  the  prosecutor 
was  not  entitled  to  insert  in  his  complaint  an  alternative 
not  contained  in  the  statute. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  167 

The  Lord  Justice-Clerk. — I  concur ;  that  objection  is    No.  20. 
insuperable.      At  the  same  time,  I  think  with  Lord  M'Whirter. 
Mackenzie,  that  the  statute  having  given  a  power  of  ap-  High  Court, 
peal,  has  by  implication  given  everything  which  is  neces-     fsis. ' 
sary  to  enable  the  Appeal  Court  to  explicate  its  juris-  suspension. 
diction.     It  does  not  follow  that  we  are  confined  to  any 
particular  mode  of  making  the  enquiry.     We  might  re- 
mit to  the  Magistrates  to  pronounce  a  special  inter- 
locutor, on  which  we  could  afterwards  proceed.     In  the 
present  instance,  I  think  we  should  pronounce  an  inter- 
locutor, which  will  indicate  our  opinion  that  the  re- 
spondent cannot  prosecute,  except  where  the  sale  and 
delivery  are  both  within  the  limits,  and  to  this  I  think 
the  suspender  entitled. 

The  following  interlocutor  was  pronounced : — 

'  Find  that  the  complaint  is  not  laid  in  conformity 

*  with  the  statute,  inasmuch  as  it  states  that  the  appel- 
'  lant  did  contravene  the  statute,  in  so  far  as  he  did  sell 
'  or  deliver  coals  within  the  limits  of  the  city  of  Glas- 
'  gow,  and  is  liable  to  the  statutory  penalty  in  respect 

*  thereof,  while  the  penalty  is  imposed  only  in  the  case 

*  of  coals  being  sold  and  delivered  within  the  said  limits ; 
'  therefore  sustains  the  appeal.' 

John  Leishman,  W.S. — Charles  Fishee,  S.S.C. — Agents. 


1 68  CASES  BEFORE  THE  HIGH  COURT 


Present, 

Feb.  17.  The  Lord  Justicb-Genebai,, 

1848. 

Lord  Justice-  Clerk, 

Lords  Mackenzie,  Moncreifp,  Medwyn,  Cockburn,  and  Wood. 

William  Graham,  Suspender — The  Lord  Advocate  (^Butherfurd) — ■ 
Moncreiff- — Inglis. 


Richard  John  Moxey,  Eespondent — Dean  of  Faculty  {M'Neill) — 

Neaves. 

Statute— ;-SusPENSiON. — Circumstances  in  which  it  was  held,  that  the 
decision  of  the  Police  Magistrate  was  final,  and  that  suspension  of 
his  decree  was  incompetent. 

No.  21.  This  was  a  suspension  of  a  sentence  pronounced  in 
'^Mox^"'  *^®  ^oWae  Court  of  Edinburgh  on  the  19th  of  January 
Hi  h Court  ^^^^'  proceeding  on  the  following  complaint. 

Feb.  17. 

^  '  Unto  the  Honourable  the  Magistrates  of  Edinburgh,  or  any 

Suspension.  .  ^f  ^^^^^  officiating  as  Judge  in  the  Police  Court,  Edin- 

'  burgh, — The  Complaint  of  Richard  John  Moxey,  Superin- 

'  tendent  of  Police,  and  Procurator-fiscal  of  Court  for  the 

'  Public  Interest. 

'  Humbly  Sheweih — ^That  William  Graham,  now  or  lately  residing 

'  in  High  Street,  in  or  near  Edinburgh,  who  is  licensed  to  sell  ale, 

'  beer,  or  exciseable  liquors,  did,  in  contravention  of  the  Edinburgh 

'  Police  Act,  1848,^  upon  the  13th  day  of  January  1849  years,  or 


1  This  statute  enacts  by  §  84,  '  Whereas  it  is  expedient  that  in  cases 
arising  under  this  Act  the  proceedings  shall  be  attended  with  as  little 
expense  and  delay  as  possible,  be  it  enacted,  That  all  actions,  pro- 
secutions, and  proceedings  before  the  said  Police  Court,  shall  com- 
mence by  a  complaint,  written  or  printed,  or  partly  written  and 
partly  printed,  at  the  instance  of  one  or  other  of  the  said  Procura- 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  169 

about  that  time,  after  the  hour  of  eleven  o'clock  at  night,  within  the     No.  21. 

premises  occupied  by  the  said  accused,  situated  in  High  Street,  in     Jiox^"' 

or  near  Edinburgh,  the  same  as  then  used  and  occupied  by  him,  beinjr  „.  .  „ 

.  .     ,  ,,  ,  ,         .     •,        ,  ^       ,  ■  ■,  ■  High  Court, 

a  spirit  shop,  cellar,  yault,  or  other  similar  place,  suffer  drinking  or    Feb.  17. 

tippling.  '»*9- 

Suspension. 


tors-fiscal,  or  at  the  instance  of  persons  duly  authorized  to  act  for 
them,  in  which  latter  case  such  proceedings,  though  subscribed  by 
any  such  persons,  shall  be  commenced  and  conducted  throughout  in 
name  of  the  said  Procurators-fiscal  respectively ;  and  (with  the  ex- 
ception of  complaints  against  Chain-droppers,  Thimblers,  loaded  Dice- 
players,  and  ofienders  of  that  description)  such  complaint,  in  all 
cases  of  theft,  or  of  reset  of  theft,  or  of  falsehood,  fraud,  and  wilful 
imposition,  or  of  breach  of  trust  and  embezzlement,  and  the  convic- 
tion following  thereon  shall  bear  that  the  sum  of  money  or  the  value 
of  the  article  stolen,  resetted,  obtained  by  falsehood,  fraud,  and  wilful 
imposition,  or  embezzled,  does  not  exceed  ten  pounds ;  and  it  shall 
not  be  competent  thereafter  to  the  person  accused,  (except  where  an 
oflTer  shall  be  made  at  the  time,)  to  prove  that  the  money  or  article 
stolen,  resetted,  obtained,  or  embezzled  exceeded  in  value  the  sum 
of  ten  pounds ;  and  the  whole  other  procedure  in  the  said  Court  shall 
be  conducted  summarily  viva  voce,  and  without  written  pleadings  ; 
and  no  other  record  shall  be  kept  of  the  proceedings  of  the  said 
Court  except  the  complaint  and  the  judgment  pronounced  thereon ; 
and  it  shall  not  he  competent  to  any  party  who  shall  appear  at  the 
bar  of  the  said  Police  Court  to  answer  to  any  complaint,  to  plead 
want  of  due  citation  or  informality  in  the  warrant  or  execution.' 
(§  86),  '  That  if  it  shall  appear  either  in  the  preliminary  investigation 
of  the  charges  against  any  person  accused  of  having  committed  any 
crime,  delinquency,  or  offence  within  the  limits  of  this  Act,  or 
during  his  trial  in  the  said  Police  Court,  that  such  person  has  been 
guilty  of,  or  is  charged  with  any  of  the  crimes  denominated  the  pleas 
of  the  Crown  ;  (videlicet,')  murder,  robbery,  rape,  and  wilful  fire- 
raising,  or  with  the  crimes  of  stouthrief,  or  of  theft  by  housebreaking, 
or  of  housebreaking  with  intent  to  steal,  or  of  simple  theft  to  an 
amount  exceeding  ten  pounds,  or  of  theft  by  opening  lockfast  places, 
or  of  theft  aggravated  by  being  habit  and  repute  a  common  thief,  or  by 
having  been  twice  previously  convicted  of  theft,  or  of  reset  of  theft  to 
an  amount  exceeding  ten  pounds,  or  of  reset  of  theft  aggravated  by 
having  been  twice  previously  convicted  of  that  crime,  or  of  falsehood^ 
fraud,  and  wilful  imposition  to  an  amount  exceeding  ten  pounds,  or 
of  falsehood,  fraud,  and  wilful  imposition,  aggravated  by  having  been 
twice  previously  convicted  of  that  crime,  or  of  breach  of  trust  and 
embezzlement  to  an  amount  exceeding  ten  pounds,  or  of  breach  of 
trust  and  embezzlement,  aggravated  by  having  been  twice  previously 
convicted  of  that  crime,  or  of  assault  to  the  danger  of  life,  or  of 

M 


170  CASES  BEFORE  THE  HIGH  COURT 

No.  21.         '  -And  the  said  accused  has  been  previously  convicted  of  the  above 
Graham  «.  '  offence,  conform  to  sentence  of  this  Court,  dated  the  22d  day  of 

°^^'    '  December  1848. 
^F  b^lT^*'      '  ^'  ^®'  *'l'6i'sfo''S)  craved  that  warrant  be  granted  for  summoning 
184.').      '  the  said  accused  to  answer  to  this  complaint,  and  for  citing  witnesses 

Suspension.         ' ^         ~    ' 

'  asault  whereby  any  limb  has  been  fractured,  or  of  assault  with  any 
'  knife  or  other  lethal  instrument,  where  effusion  of  blood  has  followed, 
'  or  of  assault  aggravated  by  two  previous  convictions  for  that  crime, 
'  or  of  assault  with  intent  to  ravish,  or  of  attempt  at  wilful  fire-raising, 
'  or  of  culpable  homicide,  or  of  forgery,  or  of  uttering  forged  bank  or 
'  bankers'  notes,  it  shall  not  be  competent  for  the  Procurator-fiscal,  or 
'  those  acting  under  or  for  him,  to  insist  in  a  prosecntion  against  such 
'  person  in  the  said  Police  Court,  but  the  Judge  shall  commit  the  per- 
'  son  accused  to  the  Prison  of  Edinburgh  for  examination ;  and  the 
'  Procurator-fiscal  shall  forthwith  give  notice  of  such  commitment  to 
'  the  Procurator-fiscal  of  the  county  of  Edinburgh,  or,  in  the  event  of 
'  the  offence  charged  having  been  committed  within  the  city  of  Edin- 
'  burgh,  or  liberties  of  the  same,  to  the  Procurator-fiscal  of  the  said 
'  city,  in  order  that  such  person  may  be  proceeded  against  conformably 
'  to  lave :  Provided  always,  that  the  aforesaid  provision  shall  not 
'  apply  to  chain-droppers,  thimblers,  loaded  dice-players,  and  offenders 
'  of  that  description,  whom  the  Judge  is  hereby  specially  empowered 
'  to  try  and  sentence,  whatever  may  be  the  amount  of  the  sum 
'  specified  in  the  charge  against  them,  or  however  often  they  may 
'  have  been  previously  convicted.'  (§  107),  '  That  no  order,  judgment, 
'  record  of  conviction,  or  other  proceeding  whatsoever,  concerning  any 
'  prosecution  instituted  in  the  said  Police  Court,  by  virtue  of  this  Ant, 
*  shall  be  quashed  or  vacated  for  any  misnomer  or  informality ;  and 
'  all  judgments  and  sentences  pronounced  by  the  Judge  shall  be  final 
'  and  conclusive,  and  not  subject  to  suspension,  or  advocation,  or  ap- 
'  peal,  or  any  other  form  of  review,  or  stay  of  execution,  unless  on  the 
'  ground  of  corruption,  malice,  or  oppression  on  the  part  of  the  Judge, 
'  or  of  such  deviations  in  point  of  form  from  the  statutory  enactments 
'  as  the  Court  of  Review  shall  think  took  place  wilfully,  or  of  incom- 
'  peteney,  including  defect  of  jurisdiction  of  the  Judge,  and  which 
'  suspension,  or  advocation,  or  appeal,  or  review,  or  stay  of  execution, 
'  must  be  presented  to  the  High  Court  of  Justiciary  within  fourteen 
'  days  after  the  date  of  the  sentence  complained  of.'  (§  135),  '  That 
'  if  any  person  who  is  licensed  to  sell  ale,  beer,  or  exciseable  liquors, 
'  shall,  within  any  shop,  house,  office,  or  other  premises  occupied  by 
'  him  suffer  riotous  or  disorderly  conduct ;  or  shall  harbour  thieves, 
'  prostitutes,  or  disorderly  persons,  or  shall  suffer  men  or  women  of 
'  notoriously  bad  fame,  or  dissolute  boys  or  girls,  to  meet  or  assemble 
'  therein  ;  or  shall  permit  or  suffer  any  unlawful  games  therein,  where- 
'  by  the  lieges  may  be  cozened  and  cheated ;  or  shall,  within  the  shop 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  171 

for  both  parties;  and  that  {he  said  accused  Be  thereafter  punished     No.  21. 
according  to  law,  or  that  such  other  judgment  he  given  as  the  case  ^J?*'^'"  *• 

may  require.  — — - 

'  According  to  Justice,'  ^^eb^t^' 

(Signed)         '  E.  J.  Moxby,  Superintendent.'      1849. 
'  Edinburgh,  \&th  January  1849.*  SuspenSiou. 

house,  office,  or  other  premises  occupied  by  him,  suffer  any  drinking 
or  tippling  at  any  hour  earlier  than  one  o'clock  in  the  afternoon  or 
during  the  hours  of  divine  service  on  Sabbath  days,  or  on  other  days 
set  apart  for  public  worship  by  lawful  authority,  (except  in  inns  and 
hotels  licensed,  and  at  railway  refreshment  rooms  licensed  and  open 
for  the  accommodation  of  passengers  only,)  such  person,  on  being  con- 
victed of  any  of  the  above  offences,  shall  be  liable  to  a>  penalty  not 
exceeding  five  pounds;  and  the  Judge  may  further  ordain  sucii  per- 
son to  find  security  for  good  behaviour  for  such  length  of  time,  not 
exceeding  twelve  months,  and  to  such  extent,  not  being  less  than  ten 
pounds,  and  not  exceeding  fifty  pounds,  as  he  shall  sed  meet ;  and  in 
the  event  of  such  caution  not  being  found  within  a  reasonable  time, 
to  be  specified  in  the  order,  it  shall  be  lawful  to  the  Judge  to  deprive 
such  person  of  his  licence ;  and  if  any  such  person  shall  be  convicted 
more  than  once  of  any  of  the  said  offences,  the  Judge  shall  in  like 
manner,  either  award  the  said  fine,  and  order  renewed  security,  or 
deprive  such  person  of  his  licence,  as  he  may  judge  proper :  saving 
and  reserving  the  rights  of  all  persons  to  enforce  the  due  observance, 
and  to  prevent  the  profanation  of  the  Sabbath  day,  otherwise,  ac- 
cording to  the  laws  and  practice  of  Scotland.'  (§  136),  '  That  if  any 
person  licensed  as  aforeswd  shall  suffer  drinking  or  tippling  within 
the  premises  occupied  by  him,  or  sell  ale,  beer,  or  exciseable  liquors 
on  anj'  day  after  eleven  o'clock  at  night,  or  before  six  o'clock  in  the 
morning,  or  on  Sabbath  days  or  on  any  other  day  set  apart  for 
public  worship  by  lawful  authority,  at  any  hour  earlier  than  one 
o'clock  in  the  afternoon,  or  during  the  hours  of  divine  service,  in  the 
case  of  a  spirit  shop,  cellar,  vault,  or  other  similar  place,  such  person, 
on  being  convicted  thereof  before  the  Judge,  shall  for  each  offence 
be  liable  to  a  penalty  not  exceeding  five  pounds,  and  may  besides, 
in  the  case  of  a  second  or  other  subsequent  conviction,  be  deprived 
of  his  licence :  Provided  always,  that  nothing  contained  in  this 
enactment  shall  apply  to  railway  refreshment-rooms  licensed  and 
open  for  the  accommodation  of  passengers  only.'  (§  137),  '  That  if 
any  person  licensed  as  aforesaid  shall  supply  any  sort  of  exciseable 
liquors  to  any  boy  or  girl  apparently  under  fourteen  years  of  age,  to 
be  consumed  by  such  boy  or  girl  within  his  shop  or  cellar,  or  any 
other  premises  occupied  by  him,  such  person  shall  be  liable,  on  being 
convicted  of  a  first  offence,  to  a  penalty  not  exceeding  twenty 
shillings  ',  upon  conviction  of  a  second  offence,  to  a  penalty  not  ex- 


172  CASES  BEFORE  THE  HIGH  COURT 

Graham't       ^'^  advising  this  complaint  the  presiding  Magistrate 
Moxey.    pronouuced  the  following  sentence : — 

High  Court. 
Feb.  17.        «  Edinburgh,  \Mh  January  1849. — The  Judge  finds  this  complaint 

"  '  proved  against  the  accused  by  evidence  adduced,  aud  finds  said  ac- 

Suspension.  t  cused  guilty  accordingly  ;  therefore  fines  and  amerciates  said  accused 

'  in  the  sum  of  £5  sterling,  payable  to  the  Clerk  of  Court ;  sentences 

'  and  adjudges  said  accused  to  be  incarcerated  in  the  prison  of  Edin- 

'  burgh,  therein  to  be  detained  until  said  fine  be  paid,  but  not  exceed- 

'  ing  twenty  days  from  this  date ;  and  grants  warrant  to  officers  of 

'  Police  to  incarcerate  the  said  accused  in  said  prison,  therein  to  be 

'  detained  accordingly.' 

(Signed)  '  J.  H.  Stott.' 

Graham  suspended,  and,  along  with  the  note  of  sus- 
pension, produced,  as  an  appendix,  the  grounds  of  deci- 
sion as  read  from  the  bench  at  the  time  of  pronouncing 
sentence,  which  are  here  printed,  as  fully  explaining  the 
case. 

'  The  accused  in  this  case  is  charged  with  having,  in  contraven- 
'  tion  of  the  Edinburgh  Police  Act,  1848,  upon  the  I3th  January  cur- 

'  ceeding  forty  shillings ;  and  upon  conviction  of  a  third  or  other  sub- 
'  sequent  ofience,  to  a  penalty  not  exceeding  five  pounds,  besides  de- 
'  privation  of  his  licence.'     (§  138),  '  That  if  any  person  licensed  as 
'  aforesaid  shall,  within  the  premises  occupied  by  hira,  knowingly 
'  harbour,  entertain,  or  suffer  to  remain  therein,  any  ofiicer,  constable, 
'  or  other  person  belonging  to  the  said  police  force  during  any  part  of 
'  the  time  appointed  for  his  being  on  duty  (unless  such  officer,  con- 
'  stable,  or  other  person  shall  be  there  for  the  purpose  of  quelling  dis- 
'  turbance,  or  otherwise  in  the  discharge  of  his  duty,)  or  if  any  person 
'  shall  supply  any  such  officer,  constable,  or  other  person  with  liquor 
'  when  upon  his  station,  or  in  any  shop,  cellar,  house,  or  other  place, 
'  during  his  time  of  duty,  such  person  so  offending  shall  for  each  such 
'  offence  be  liable  to  a  penalty  not  exceeding  five  pounds.'     (§  162), 
'  Whereas  encouragement  is  given  to  dissolute  persons  to  remain  in 
'  and  loiter  about  the  streets  at  late  and  unseasonable  hours,  by 
'  keepers  of  shops,  in  which  dressed  provisions  are  sold,  keeping  or 
'  having  the  same  open  at  late  hours  in  the  night,  and  early  hours  in 
'  the  morning  J  be  it  enacted.  That  no  keeper  of  any  such  shop  shall 
'  open,  or  iave  open,'his  shop  at  an  earlier  hour  than  five  o'clock  in 
'  the  morning,  or  a  later  hour  than  twelve  o'clock  at  night,  and  if  any 
'  person  shall  offend  herein,  he  shall,  upon  conviction  before  the  Judge, 
'  for  every  such  offence  be  liable  to  a  penalty  not  exceeding  forty 
'  shillings.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  173 

'  rent,  after  the  hour  of  eleven  at  night,  within  the  premises  occupied     No.  2). 
'  by  hiin,  situated  in  High  Street,  the  same  as  then  used  and  occupied  ^^^'^  "• 

■  by  him,  being  a  spirit  shop,  cellar,  vault,  or  other  similar  place,  suf — ; — 

■  fered  drinking  or  tippling.     He  is  further  charged  with  the  aggra-    p^j,  j^^ 

■  vation  of  a  previous  conviction  for  the  same  offence.  1849. 

'  It  has  been  proved,  that  the  house  for  which  Graham  obtained  his  Suspension. 
'  license  is  the  third  fiat  from  the  ground,  consists  of  six  apartments, 

•  and  contains  three  beds,  two  of  which  are  occupied  by  the  tenant 

■  and  his  family,  the  third  being  kept  for  the  use  of  any  person  who 

■  may  apply,  such  as  commercial  men,  who  sometimes  frequent  the 

•  house.  In  addition  to  the  third  (the  licensed)  flat,  Mr  Graham  oc- 
'  cupies  a  lower  storey,  which,  though  belonging  to  a  different  pro- 

■  prietor,  communicates  with  the  former  by  a  door  connecting  the 

■  two,  and  contains  two  apartments, — namely,  a  double-bedded  room 

•  and  a  sinarle  one,  with  a  laundry,  all  passing  through  each  other, 

■  which  are  used  by  visitors.     On  Saturday  last,  there  were  seventy- 

■  four  persons  in  the  licensed  house,  engaged  in  drinking  or  tippling, 

■  after  the  hour  of  eleven  at  night,  of  whom  three  were  in  the  act  of 
'  being  supplied  with  viands,  the  remaining  seventy-one  being  en- 
'  gaged  in  drinking  or  tippling  only.  They  were  distributed  through 
'  the  house,  there  being  thirty-one  in  one  apartment,  twenty-Jive  in 
'  another,  seven  in  a  third,  eight  in  a  fourth,  and  the  three  engaged  in 
'  eating,  were  appropriately  enough  found  seated  in  the  kitchen. 
'  They  were  proved  to  have  been  a  mixed  company,  and  had  not  met 

■  for  any  common  object,  except  that  in  which  they  were  engaged  for 

■  the  moment.     The  aggravation  of  the  offence  charged  was  admitted. 
'  On  the  part  of  the  accused,  it  has  been  proved  that  the  house 

'  bears  the  name  of  '  Graham's  Anchor  Hotel,' — a  name,  however, 
'  which  is  only  of  recent  origin — that  it  is  respectably  conducted  on 
the  same  principle  as  an  ordinary  tavern  or  hotel — that  dinners  and 
suppers  are  occasionally  supplied,  and  that  on  the  day  in  question, 
a  party  of  individuals,  consisting  of  from  sixteen  to  eighteen,  whom 
the  witness  adduced  designated  as  a  supper-party,  had  assembled  in 
the  house  about  half-past  five,  and  left  about  half-past  eight ;  al- 
though a  few  might  have  been  there  and  mingled  with  those  who 
were  found  after  eleven. 

'  It  was  contended  on  the  part  of  Mr  Graham,  that  his  house  being 
neither  '  a  spirit  shop,  cellar,  vault,  or  any  other  similar  place,'  is 
excluded  from  the  operation  of  the  statute,  and  that  the  Magistrates 
had  no  right  of  jurisdiction. 

'  The  duty  imposed  on  the  Magistrates,  is  to  carry  into  effect  the 
objects  intended  by  the  Legislature,  as  these  are  expressed  in  the 
statute.  Now,  the  object  expressed  and  intended  by  the  136th 
clause  of  the  Act,  is  to  prevent  tippling  or  drinking  and  the  sale  of 
exciseable  liquors  in  licensed  houses  after  the  hour  of  eleven  at  night 
on  week  days,  and  earlier  than  one  o'clock  on  Sabbath-days,  &c, 


174  CASES  BEFORE  THE  HIGH  COURT 

No.  21.     '  The  clause  at  its  outlet  is  quite  general  in  its  terms  as  to  the  places 
^M^*""'  '  where  the  offence  may  be  committed,  to.  which  its  provisions  are 

-: '—  '  intended  to  apply,  the  words  being  '  within  the  premises  occupied 

J^eb,  17. "  "  V  bim;'  namely,  the  party  licensed.      So  general  are  its  terms, 

1849.      '  that,  in  order  to  take  from  beyond  its  operation  railway  refreshment 

Suspension. '  rooms,  a  special  clause  of  exemption  is  inserted,  shewing  the  gene- 

'  ral  application  of  the  clause,  even  to  premises  like  these,  had  the}' 

'  not  been  specially  selected  for  exemption. 

'  But  it  is  contended,  that  the  general  teqns  of  the  clause  are  quali- 
'  fied  by  the  words,  '  spij-it  shop,  cellar,  vault,  or  other  similar  place,' 
'  which  occur  in  a  subsequent  part  of  the  enactment.  It  is  argued, 
'  that  these  words  must  be  construed  literally,  and  that  no  house  whose 
'  general  description  does  not  fall  within  the  category  enumerated, 
'  can  be  held  subject  to  the  provisions  of  the  statute. 

'  It  appears  to  the  Magistrates,  that  a  house  or  other  premises  are 
'  to  he  kuown  and  described  by  what  is  done  within  their  precincts. 
'  The  meaning  of  the  word  shop  is,  '  a  place  where  anything  is  sold,' 
'  and  a  spirit  shop  is  a  place  where  spirits  are  sold.  If  the  keeper  of 
'  a  licensed  house,  used  in  general,  wholly  or  partially  for  any  pur- 
'  pose,  say  for  holding  public  meetings,  shall,  on  any  particular  oc- 
'  casion,  devote  it  to  the  sale  of  exciseable  liquors,  and  suffer  large 
'  numbers  to  assemble  and  engage  in  drinking,  he  brings  himself 
'  within  the  provisions  of  the  statute,  and  will  not  be  excluded  by 
'  the  fact  that  generally  his  premises  are  not  used  for  the  purpose  of 
'  tippling  or  drinking.  By  such  an  act,  the  keeper  of  the  house 
'  changes  its  character,  converts  it  into  a  spirit  shop  for  the  time,  and 
'  brings  himself  within  the  provisions  of  the  statute.  The  same  re- 
'  mark  applies  to  a  house  used  generally  as  a  lodging-house,  a  tavern, 
'  or  a  hotel,  the  general  character  of  which  may  be  changed  by  adapt- 
'  ing  it  to  a  special  purpose,  differing  from  that  to  which  it  is  gene- 
'  rally  applied. 

'  A  case  of  this  nature  has  already  occurred.  A  house  said  to  be 
'  used  for  the  accomfliodation  of  travellers,  and  consisting  of  seven 
'  apartments,  was  found  one  evening  after  eleven  o'clock  to  contain 
'  seventy-five  persons,  who  were  engaged  in  drinkjlng  and  tippling. 
'  Six  out  of  the  seven  rooms  were  fitted  up  with  beds,  and  were 
'  occasionally  occupied  by  visitors  at  the  house,  where  commercial 
'  travellers  were  in  the  habit  of  residing  when  in  town.  Of  the 
'  seventy-five  individuals,  three  slept  in  the  house  that  evening,  the 
'  remaining  seventy-two  having  been  there  for  the  purpose  of  drink- 
'  ing,  in  which  they  were  proved  to  have  been  engaged.  In  that  case 
'  the  presiding  Magistrate,  acting  on  the  principle  already  mentioned, 
'  found  that  the  house  having  been  used  as  a  spirit  shop  for  the  time, 
'  came  under  the  provisions  of  the  statute,  and  decided  accordingly. 

'  In  the  case  above  referred  to,  the  circumstances  were  rather  more 
'  favourable  to  the  accused  than  those  which  have  been  proved  in  the 


AND  CIRCDIT  COURTS  OF  JUSTICIARY.  l75 

present  case.     Here  the  averment  that  the  house  is  properly  de-     No.  21. 
signated  as  a  hotel,  iu  conformity  with  its  recently  assumed  name,  "^"*™  *• 

has  not  been  proved.     But  even  although   such  proof  had  been  

adduced,  it  would  not  have  affected  the  principle  on  which  the  deci-    ^|j_  j7_ ' 
sion  proceeded,  and  which  it  appears  to  the  Magistrates  applies  also       1849. 
to  the  present  case.     It  cannot  be  pretended  that  on  the  evening  of  Suspension. 
Saturday  the  13th,  the  parties  found  in  Mr  Graham's  house  used  it 
as  a  hotel.     They  used  it  as  a  spirit  shop  for  the  purpose  of  tippling 
or  drinking  the  exciseable  liquors  which  he  supplied,  and  in  doing 
which  it  appears  to  the  Magistrates  he  used  his  premises  as  a  spirit 
shop  in  the  sense  intended  by  the  statute,  and  for  purposes  which  the 
statute  was  passed  in  order  to  prevent. 

'  Although  much  weight  cannot  be  attached  to  the  words  '  or 
'  other  similar  place,'  following  the  descriptive  portion  of  the  clause 
in  the  statute,  still  they  cannot  surely  be  held  to  have  no  meaning 
at  all.  If  the  word  spirit  shop  be  a  local  phrase,  importing  a  place 
entering  from  the  street  (which  has  been  contended  foi-),  these 
general  words  may  fairly  be  construed  as  conferring  a  latitude  of  in- 
terpretation which  otherwise  the  Magistrates  would  not  have  pos- 
sessed. According  to  the  view  contended  for,  the  prohibition  is  in- 
tended to  be  limited  to  tippling  or  drinking  within  places  on  a  level 
with  the  street,  in  cellars  and  iu  vaults.  But  it  cannot  be  supposed 
to  have  been  the  intention  of  the  Legislature  to  prevent  the  sale  of 
exciseable  liquors  in  the  lower  stories,  and  admit  the  same  act  to  be 
carried  on  without  interruption  in  the  attics  of  the  same  tenement. 
Such  a  doctrine  leads  to  a  manifest  absurdity,  and  is  therefore  un- 
tenable.' 

Plead edfor  the  Suspender — This  suspension  was  brought 
on  the  ground  that  the  Judge  in  the  Inferior  Court  had 
exceeded  the  jurisdiction,  given  him  by  the  statute.  It 
was  not  denied  that  the  premises  were  in  truth  an  hotel. 
It  was  only  said  that  the  use  of  the  premises  on  a  parti- 
cular occasion,  made  it  a  spirit  shop.  The  first  question 
was,  whether  the  Court  had  jurisdiction  to  review  under 
the  statute.  The  107th  section,  which  precluded  review, 
except  in  certain  cases,  left  it  open  to  the  Court  to  en- 
quire whether  the  particular  case  brought  before  them 
fell  within  the  exceptions  or  not.  Thus,  for  instance,  it 
might  be  enquired,  whether  the  premises,  in  respect  of 
which  the  complaint  was  presented,  were  within  the  limits 
of  the  police  bounds.  Again,  it  might  be  enquired 
under  the  86th  section,  whether  the  magistrates   had 


176  CASES  BEFORE  THE  HIGH  COURT 

No.  21.    convicted  in  respect  of  any  oifence  which  was  therein 

Graham  v.  i     t  \    „  ,,..■,..  mt  • 

Moxey.    Specially  excluded  from  his  jurisdiction.     This  was  pre- 


HighCourt.  cisely  analagous  to  the  present  case.     It  was  not  sought 
1849. '   to  have  a  review  on  the  merits,  as  to  whether  tippling 

Suspension,  took  place  after  eleven  o'clock  at  night  or  not,  but  only 
whether  the  premises  were  in  fact  a  '  spirit  shop,  vault, 
'  or  cellar,  or  other  similar  place.'  The  135th  section 
dealt  with  all  houses  licensed  in  the  same  terms,  except 
in  so  far  that  in  licensed  inns  and  hotels,  and  railway  re- 
freshment rooms,  no  limitation  was  imposed  in  respect  of 
Sabbath  days.  The  136th  section  commenced,  '  If  any 
'  person  licensed  as  aforesaid'  (and  under  the  licensing 
act,  hotels,  taverns,  and  spirit  shops,  had  precisely  the 
same  license,)  and  could  not  be  construed,  so  as  to  be  in 
opposition  to  the  preceding  section,  to  which  it  referred. 
Yet  this  must  be,  if  hotels  which  were  excluded  from 
the  135th  section,  were  to  be  held  as  included  in  the 
136th,  inasmuch  as  that  would  lead  to  inconsistent  pro- 
visions in  respect  of  the  Sabbath. 

This  went  farther  than  the  mere  question  of  construc- 
tion of  a  particular  section,  as  it  shewed  that  drinking 
alone  could  not  make  any  premises  a  spirit  shop ; 
otherwise,  the  supplying  a  bottle  of  wine,  without  food, 
on  Sabbath  morning,  Avould  make  the  best  hotel  in 
Edinburgh  liable  to  the  penalties  of  the  act,  notwith- 
standing the  express  exception  in  the  135th  section. 
The  first  question  for  the  Judge  to  have  determined 
was,  whether  the  premises  were  of  such  a  character  that 
he  had  jurisdiction  to  enquire  to  what  use  they  were  ap- 
propriated, and  unless  he  had  such  jurisdiction,  the  sen- 
tence was  a  nullity,  and  ought  to  be  set  aside. 

Pleaded  for  the  Respondent — This  suspension  was  in- 
competent. Section  107  of  the  act  excluded  all  review, 
except  for  certain  specified  causes,  none  of  which  were 
alleged  here.  The  alleged  want  of  jurisdiction  was  a  fal- 
lacy. It  was  of  the  essence  of  the  offence  whether  the 
suspender  contravened  the  act,  by  the  use  to  which  he 
appropriated  his  house.     All  that  was  said  on  the  other 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  177 

side,  merely  amounted  to  a  denial  of  the  offence.     It  was    No.  21. 
admitted,  that  if  the  complaint  had  shewn  a  want  of  juris-    Moxey. 


diction  ea;  facie,  then  there  would  have  been  a  power  to  HighComt 
review.    But  that  was  not  shewn  here.     The  charge  was     \ud. ' 
before  the  proper  judge,  and  he  affirmed  it.    Had  he  been  suspenaion. 
of  opinion  that  the  premises  were  not  a  spirit  shop,  ought 
he  to  have  dismissed  the  case  as  incompetent,  or  to  have 
said  not  guilty  ?  clearly  the  latter.     Yet,  if  he  had  juris- 
diction to  say  not  guilty,  he  had  also  power  to  say  guilty 
if  he  found  the  offence  proved.     This  shewed  that  the 
locus  was  part  of  the  offence,  and  not  a  question  of  juris- 
diction, as  argued  on  the  other  side.     The  use  to  which 
the  premises  were  appropriated  determined  their  cha- 
racter, and  that  was  for  the  Judge  to  determine. 

The  LoED  Justice-Clerk. — Do  you  say  that  an  hotel- 
keeper  would  be  liable  under  this  section,  if  he  supplied 
a  pint  of  wine  to  a  casual  visitor  in  his  coffee-room  after 
eleven  at  night  ? 

That  would  be  for  the  Judge  to  determine,  and  his 
judgment  was  made  final  by  the  statute. 

The  Lord  Justice- Clerk. — The  question  is  one  of 
great  importance,  and  the  duty  which  the  Court  has  to 
discharge  is,  in  my  opinion,  to  ascertain  whether  the 
Police  Magistrate  has  exceeded  the  jurisdiction  given 
him  by  the  statute.  This,  in  my  view,  is  not  a  review 
on  the  merits — it  is  not  an  enquiry  into  the  propriety  of 
the  sentence,  or  the  sufficiency  of  the  evidence  on  which 
it  proceeded,  but  whether  the  magistrate  had  power  to 
enter  on  the  enquiry.  The  distinction  is  clearly  marked 
in  the  84th  section,  in  regard  to  the  value  of  articles 
stolen.  By  that  section,  if  the  person  accused  offers  at 
the  time  to  prove  that  the  value  of  the  articles  which 
form  the  subject  of  the  charge  exceed  £10,  he  is  entitled 
to  enter  upon  the  proof,  and  so  oust  the  magistrate's 
jurisdiction.  But  suppose  the  magistrate  to  determine 
erroneously  that  the  value  did  not  exceed  £10,  could  he 
thereby  give  himself  jurisdiction,  and  exclude  review  on 


178  CASES  BEFORE  THE  HIGH  COURT 

No.  21.    this  matter.     Yet  all  the  difficulties  which  have  been 

Graham  v.  «  .     ,  . 

Moxey.    Suggested,  as  to  no  record  and  finality  of  judgment  in 
High  Court,  the  present  case  would  exist  in  the  case  supposed. 

1849."       I  do  not  think  those  difficulties  insurmountable  either 
Suspension.  OH  principle  or  authority.     The  inherent  jurisdiction  of 
this  Court,  to  confine  inferior  courts  within  their  func- 
tions— a  jurisdiction  which  is  not  disputed,  must  be  ca- 
pable of  explication.     Accordingly,  in  several  decided 
cases  where  similar  difficulties  have  existed,  the  Court 
have  sustained  the  competency  of  a  suspension,  and  di- 
rected enquiry  into  the  facts.      Thus,  in  the  case  of 
Robertson,  High  Court,  Dec,  24.  1842,  (Broun,  vol.  i. 
p.  468),  we  held  it  competent  to  make  enquiry,  and 
made  a  special  remit  for  the  purpose  of  ascertaining  the 
facts.  In  the  case  oi  Anderson,  High  Court,  Feb.  15. 1836, 
(Swinton,  vol.  i.  p.  35),  the  Court  held  the  whole  pro- 
ceedings incompetent  under  the  £10  clause  in  the  former 
Police  Act.     Again,  in  the  case  of  Boioie,  High  Court, 
Jan.  25.  1845,  (Broun,  vol.  ii.  p.  377),  we  directed  an 
enquiry  as  to  whether  the  locus  was  within  the  limits  of 
the  burgh.     And  in  the  case  of  Lockie,  the  other  day 
(ante,  p.  161),  I  was  prepared,  had  it  been  necessary,  to 
have  remitted  to  the  magistrates  to  pronounce  a  special 
interlocutor  finding  the  facts.     There  is  then  no  doubt 
that  the  Court  can  ascertain  all  matter  of  fact  which 
goes  to  the  jurisdiction  of  the  inferior  tribunal. 

But  the  86th  section  of  the  present  act  makes  the 
matter  plain,  in  my  apprehension.  It  is  thereby  enacted, 
that  in  certain  cases  the  police  magistrate  shall  have  no 
jurisdiction.  Is  it  conceivable  that,  if  the  magistrate 
disregarded  this  enactment,  and  proceeded  to  convict 
in  one  of  the  excepted  cases,  the  party  could  not  sus- 
pend on  a  relevant  allegation  ?  or  would  it  be  any  an- 
swer to  say  that  the  complaint  and  conviction  are  all 
that  we  could  look  at,  in  order  to  determine  the  case  ? 
Clearly  not.  This  makes  it  clear  to  me,  that  ascertain- 
ment of  the  fact  is  our  duty,  if  the  fact  is  disputed,  and 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  ]  79 

that  suspension  is  competent  if,  upon  admitted  facts,  we    No.  21. 

.  Graham  i 

see  that  the  magistrate  has  committed  an  error  in  law,    Moxey. 


and  exceeded  his  functions.  High  Court. 

Feb. 17 

Premising  this,  how  stands  this  case  ?  The  135th  sec-  1849. ' 
tion  is  general,  and  comprehends  all  houses.  It  uses  the  Suspension. 
Avords  '  other  premises.'  There  was  plainly  no  reason 
why  the  jurisdiction  in  the  case  of  riotous  and  disorderly 
persons  should  be  limited.  Inns  and  hotels  are,  however, 
specially  excepted,  in  so  far  as  the  clause  is  directed 
against  tippling  on  Sundays  and  Fast-days.  I  think  the 
broad  import  of  the  word  exciseable  liquors,  must  be  no- 
ticed in  both  the  135th  and  136th.  This  plainly  com- 
prehends more  than  spirits.  Then,  when  the  place  is  de- 
scribed in  the  136th,  to  which  the  prohibition  is  intended 
to  apply,  it  is  said  to  be  '  in  the  case  of  a  spirit  shop,'  &c. 
a  word  not  before  used.  This  means,  therefore,  in  the 
case  of  premises  of  a  special  character,  and  the  words 
must  receive  a  broad,  popular,  and  intelligible  interpre- 
tation. Again,  observe  the  effect  of  the  construction 
contended  for,  that  the  use  to  which  the  premises  are 
applied,  is  to«  determine  whether  they  are  to  be  consider- 
ed as  a  spirit  shop.  The  words  as  to  the  period  of  divine 
service  are  the  same  in  both  the  135th  and  136th,  and 
hotels  are  specially  exempted  in  the  former.  But,  if  use 
is  to  determine,  then  the  exemption  is  virtually  repealed 
under  the  136th. 

We  are  told  that  the  decision  of  the  judge  is  final  as 
to  the  use  on  that  night.  If  that  is  so,  then  every  place 
may,  at  the  discretion  of  a  police  magistrate,  be  put  in 
this  category.  I  cannot  take  this,  and  do  not  think  this 
was  ever  intended.  The  137th  and  138th  sections  are 
general  where  a  general  evil  is  sought  to  be  prevented, 
thus  broadly  drawing  a  distinction  which  has  been  over- 
looked in  the  present  case.  Nor  can  I  think  the  162d 
section  is  intended  to  apply  to  coffee-rooms  at  an  inn, 
yet  this  would  follow  if  the  argument  of  use  was  sound. 
There  is  another  ground  on  which  I  think  this  suspen- 
sion competent,  viz.,  that  there  is  here  a  plain  deviation 


180  CASES  BEFORE  THE  HIGH  CODRT 

No.  -21.    from  the  accustomed  form  in  the  complaint.     It  charges 

Graham  r>. 

Moxey.    that  the  accused  did,  within  his  premises,  '  the  same  as 


High  Court. '  t/ieu  used  and  occupied  by  him,  being  a  spirit  shop,'  &c. 
1849. "    Can  any  one  doubt  that  this  is  a  deviation  in  form,  and 

Suspension,  for  a  vvilful  purpose,  to  give  jurisdiction,  and  exclude 
review.  I  am  of  opinion  that  the  device  is  ineffectual, 
and  that  we  can  competently  ascertain  the  facts  other- 
wise, although  I  am  also  of  opinion  that  the  complaint 
is  invalid. 

Lord  Mackenzie. — I  think  we  have  no  jurisdiction  to 
entertain  this  suspension.  It  is  not  alleged  that  there 
was  any  corruption  on  the  part  of  the  judge.  It  is  only 
said  that  he  assumed  an  excessive  jurisdiction,  and  this  is 
the  point  for  us  to  consider.  I  agree  that  the  judge  can- 
not give  himself  jurisdiction  by  framing  the  complaint 
and  sentence  so  as  to  be  unexceptionable  ex  facie.  How- 
ever troublesome  it  may  be,  I  think  there  are  cases  in 
which  we  are  empowered,  and  consequently  obliged,  to 
enquire  into  the  facts,  to  see  if  this  has  been  done.  But 
does  this  arise  here  ?  I  think  not.  I  doubt  whether  the 
136th  clause  has  any  limitation  as  to  jurisdiction.  It 
seems  to  define  crime,  and  not  to  restrict  jurisdiction  as  to 
place  or  time.  Now,  could  not  the  judge  have  competently 
assoilzied  when  the  case  was  heard  ?  Could  he  not  have 
assoilzied  if  the  time  was  wrong  ?  I  think  he  could,  and 
consequently,  I  think  the  expressions  as  to  time  and  place 
are  definitions  of  the  offence,  and  not  limitations  of  the 
jurisdiction.  If  this  is  so,  then  We  have  no  power  of  re- 
view, as  by  the  act  the  decisions  of  the  judge  are  made 
final.  In  respect  of  the  form  of  the  complaint,  I  do  not 
think  there  is  such  a  deviation  as  entitles  us  to  interfere. 
The  use  to  which  a  party  appropriates  his  premises  seems 
to  me  very  important,  if  not  conclusive,  in  determining 
whether  the  offence  was  committed.  Consequently,  I 
think  that  any  person  whatever,  who  mainly  uses  his 
premises  for  the  purpose  of  supplying  spirits,  will  be 
guilty  of  an  offence  under  the  act,  if  he  continue  to  sell 
them  after  11  at  night. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  181 

Lord  Moncreiff. — I  entirely  concur  with  the  Lord    No.  20, 
Justice-Clerk.     If  we  refuse  to  enquire  into  the  facts,  I    Moxey, 


think  we  shall  set  a  very  dangerous  precedent.     We  are  High  Court. 
not  called  on  at  present  to  do  more  than  sustain  the  com-     isis. 
petency  of  the  suspension.     We  must  judge  of  the  case  suspension. 
afterwards.     The  question  of  competency  depends  on  the 
statute  and  the  complaint.    This  is  founded  on  the  136th 
section,  and  the  question  is.  Does  this  section  apply  to 
inns  and  hotels,  to  prohibit  drinking  after  11  at  night? 
It  seems  to  me  impossible  to  say  it  does ;  inasmuch  as 
that  construction  would  operate  as  a  repeal  of  the  ex- 
emption as  to  the  Sabbath,  which  is  made  in  the  135th. 
It  seems  impossible,  therefore,  to  read  this  as  a  general 
clause,  notwithstanding  the  vague  terms  used  at  the 
commencement.     I  think  that  the  sound  interpretatiofl 
is,  that  the  penalties  are  limited  to  offences  by  keepers 
of  spirit  shops,  and  that  that  term  must  be  understood 
in  its  broad  and  popular  meaning.     It  is  argued  that  this 
is  not  a  question  of  jurisdiction.     To  my  mind  it  is  a 
question  of  jurisdiction,  and  nothing  else.     The  Legisla- 
ture has  said,  that  a  man  who  commits  a  certain  act  in  a 
specified  place,  is  guilty  of  an  offence.     Is  not  the  limi- 
tation of  the  place  a  limitation  of  the  jurisdiction  I     If, 
then,  the  police  magistrate  exceeded  his  jurisdiction,  by 
proceeding  to  convict,  in  respect  of  excepted  premises,  I 
think  not  only  that  he  thereby  exceeded  his  jurisdiction,, 
but  that  it  is  our  duty  to  tell  him  so.     Jurisdiction  is  de- 
pendent upon  a  crime  having  been  committed.     But  the 
offence  here  charged  is,  in  my  view,  no  crime  cognizable 
by  the  police  magistrates,  except  in  certain  places,  in 
like  manner  as  in  the  86th,  certain  offences  are  excepted 
from  his  adjudication.     Besides,  I  take  it  to  be  clear  that 
the  libel  should  in  all  cases  explicitly  set  forth  a  plain 
violation  of  the  statute.     But  is  that  done  here  ?    Quite 
the  reverse.     There  is  no  description  of  the  premises  as 
they  are.     It  is  only  said  they  were,  on  a  particular  occa- 
sion, used  as  a  spirit  shop.     This  is  not  enough,  in  my 
opinion.     It  seems  to  me  an  intentional  device,  resorted 


182  CASKS  BEFORE  THE  HIGH  COURT 

No.  21.    to  in  order  to  give  a  iurisdiction  the  statute  had  not  eon- 
Graham  «.  O  J 
Moxey.    ferrcd,  and  to  render  the  decision  final.     I  think  it  will 

HighCourt.be  eminently  dangerous  to  allow  any  encouragement  to 

1849.     such  an  attempt,  and  I  am  for  sustaining  this  suspension, 


Suspension,  to  the  extent  of  directing  an  enquiry  into  the  facts  of  the 
case.  The  case  of  a  person  occupying  an  hotel,  having 
systematically  perverted  it  to  the  purpose  of  tippling, 
does  not  arise  here,  and  I  give  no  opinion  thereon. 

Lord  Medwyn. — I  concur  generally  with  Lord  Mac- 
kenzie. Review  is  admitted  in  certain  cases  only  under 
the  107th  section.  It  is  alleged  that  the  suspender  com- 
mitted no  offence,  and  that  the  magistrate  exceeded  his 
jurisdiction  in  convicting  him.  There  is  no  doubt  that 
we  may  enquire  into  the  facts  as  respects  the  jurisdic- 
tion. But  here,  to  my  mind,  it  is  a  question  of  crime. 
Use  is  the  important  matter  in  a  case  like  the  present, 
otherwise  the  act  would  be  Constantly  evaded.  I  do  not 
think  the  peculiarity  of  the  form  of  complaint  such  a  de- 
viation as  was  contemplated  by  the  statute  in  the  107th. 
The  not  citing  of  the  party,  refusal  to  hear  witnesses,  &c., 
seem  to  me  to  be  the  points  of  form  mentioned.  The 
description  of  the  premises  was  no  doubt  introduced  ad- 
visedly, to  meet  the  case,  and  I  am  of  opinion  that  the 
judge,  having  affirmed  the  complaint,  has  thereby  con- 
clusively established  the  fact,  and  excluded  all  further 
enquiry. 

Lord  Cockburn. — I  am  of  opinion  that  this  appeal  is 
incompetent.  And,  under  the  excluding  clause  of  this 
statute,  I  am  of  this  opinion,  even  on  the  assumption  that 
the  magistrate  was  wrong,  both  on  the  facts  and  on  the 
law. 

The  act  makes  every  judgment  of  the  Police  Court 
'  Jinal  and  conclusive,'  unless  there  was  intentional  ini- 
quity/ on  the  part  of  the  magistrate,  or  a  wiifid  violation 
of  form ;  or  incompetency  in  the  original  complaint.  There 
is  no  intentional  iniquity  alleged  here  ;  nor  any  original 
incompetency,  except  what  depends  on  an  unwarranted' 
adoption  of  the  appellant's  account  of  the  facts.     He 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  183' 

says  that,  de  facto,  his  premises  were  not  a  spirit  shop  ;     No-  21. 
and,  on  this  assumption  of  his  innocence,  he  argues  that    Moxey. ' 
the  magistrate  had  no  jurisdiction  over  him.     If  this  High  Court. 
reasoning  were  sound,  it  is  difficult  to  see  how  finality     1849. ' 
could  ever  be  secured.     It  is  perfectly  plain  (to  my  mind  Suspension, 
at  least),  that  whenever  the  disputed  fact  is  of  the  essence 
of  the  crime,  it  would  be  a  mere  mockery  of  such  an  ex- 
cluding clause,  to  pretend  to  defeat  or  evade  it  by  first 
beginning  by  reviewing  the  sentence  on  its  merits,  but 
without  the  evidence  ;  and  then,  after  thus  fancying  that 
the  inferior  judge  was  wrong  on  the  facts,  to  infer  legally 
that  he  had  never  had  any  jurisdiction  in  the  matter. 
A  statute  directs  a  magistrate  to  deal  in  a  particular  way 
with  a  man  found  dmnk  on  the  street,  and  excludes  all 
review.     I  cannot  conceive  how  this  exclusion  can  be 
set  aside,  by  the  convicted  person  asserting,  and  oifering 
to  prove,  that  he  was  not  drunk,  and  that  therefore  the 
magistrate  had  no  jurisdiction.     Whether  the  Judge  of 
Police  was  right  or  wrong  as  to  the  appellant's  premises 
having  been  a  spirit  shop,  I  cannot  say ;  because  this  was 
a  matter  of  proof,  and  the  statute  prohibits  the  evidence 
from  being  preserved.     But  his  being  wrong  as  to  the 
facts  is  certainly  no  ground  of  appeal. 

It  has  been  objected,  that  what  the  statute  condemns 
is,  night  tippling,  in  what  actualli/  are  vaults,  cellars, 
spirit  shops,  or  other  similar  places,  but  that  this  com- 
plaint only  set  forth  the  appellant's  premises  to  be  so, 
as  then  used  by  him.  I  humbly  think  this  frivolous ;  the 
complaint  does  assert  that  the  premises  came  within  the 
statutory  description.  No  doubt  it  adds  that  this  was, 
as  then  used ;  but  this  addition,  though  it  explains,  does 
not  vitiate  the  charge.  I  should  be  very  sorry  to  see  the 
punctilious  nicety  of  regular  indictments  introduced  into 
police  complaints.  But,  at  any  rate, — let  the  complaint 
be  defective, — still,  the  magistrate,  in  sustaining  it,  only 
erred  in  law,  and  mere  legal  error  will  not  warrant  an  ap- 
peal to  this  court ;  especially  on  a  point  of  form.  It  is 
said  that  this  deviation  from  form  was  wilful ;  but  this  is 


184  CASES  BEFORE  THE  HIGH  COURT 

No.  21.    a  supposition  for  which  there  is  not  a  vestige  of  evidence, 
Mox^.*'  nor,  so  far  as  I  can  discover,  even  of  moral  probability. 

High  Court.      Being  of  opinion  that  the  appeal  is  incompetent,  we 
\si9. '   have,  properly,  nothing  to  do  with  the  merits.     But  as 

Suspension,  it  has  been  maintaiped  that  these  two  run  into  each 
other,  I  shall  merely  say  that,  in  my  opinion,  it  can 
never  be  determined  what  is  a  spirit  shop,  merely  or 
materially  by  a  consideration  of  its  position  or  structure. 
It  depends  mainly,  if  not  entirely,  upon  the  use  of  the 
place.  A  building  originally  erected,  and  long  used,  and 
still  in  its  form,  a  mere  church,  if  it  be  employed  as  a 
gin  palace,  is  a  spirit  shop.  And  a  place  which  is  used 
solely  as  a  storehouse,  or  a  school-room,  is  not  a  spirit 
shop,  because  its  sign  as  such,  and  its  counters,  and 
shelves,  and  desks,  and  tills,  all  remain  unchanged.  The 
use  necessary  to  make  any  place  a  spirit  shop  is  always  a 
matter  of  degree,  of  which  it  is  the  magistrate's  duty  to 
judge,  according  to  the  circumstances  of  each  particular 
case.  Now  this  place  was  complained  of,  and,  upon  evi- 
dence, was  condemned  as  a  spirit  shop  or  other  similar 
place,  as  used.  Whether  the  evidence  warranted  this  I,. 
who  have  not  the  evidence,  cannot  say,  and  do  not  con- 
jecture. It  was  referred  by  Parliament  to  the  magis- 
trate. It  seems  to  be  supposed  that  this  is  a  dangerous 
power  to  confer  on  a  magistrate.  Parliament  did  not' 
think  so ;  and  I  have  no  idea  that  there  would  be  less 
danger,  or  even  practicability,  in  making  such  facts  com- 
petent to  be  reviewed  in  the  Supreme  Courts. 

Lord  Wood. — There  is  under  the  statute  no  general, 
but  only  a  special  power  of  review  under  the  107th  section, 
including  deviation  of  form,  and  want  of  jurisdiction. 
Now,  there  is  no  form  or  schedule  of  complaint  given  in 
this  statute.  The  objection,  therefore,  resolves  into  this, 
that  the  complaint  does  not  state  a  statutory  offence.  I 
do  not  think  the  limitation  implied  by  the  use  of  the  phrase, 
spirit  shop,  was  intended  to  involve  a  question  of  jurisdic- 
tion, but  to  secure  a  fair  disclosure  of  the  facts.  I  think 
it  is  the  use  which  makes  the  offence.    This  involves  the 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  185 

jurisdiction.   The  Judge  must  do  more  than  enquire  into  e^hams. 
the  outward  mark  or  name  of  the  premises ;  he  must  ascer-    ^"^^^y- 
tain  the  nature  of  the  use  which  is  made  of  them,  and  then  '^^j^^™'''' 
his  decision  is  final.     People  may  call  their  house  what     i849. 
they  choose.    But  if  the  Judge  is  to  enquire  into  use,  his  Suspension. 
judgment  is  final.   The  difficulty  of  the  question  will  not 
give  us  the  power  of  review ;  and  although  the  decision  is 
erroneous  we  cannot  alter  it. 

Lord  Justice-General. — I  coincide  with  the  Lord 
Justice-Clerk  and  Lord  Moncreiff  on  botji  points.  I 
think  there  was  no  jurisdiction.  I  am  also  struck  with  the 
mode  of  drawing  the  complaint.  If  meant  to  raise  the 
question,  it  ought  to  have  to  set  it  out  in  clear  terms. 
But  I  think  it  clear  from  the  whole  that  the  charge  was 
made  so  as  to  avoid  the  question,  and  this  shews  that 
they  meant  to  hold  that  mere  use  was  enough  It  ap- 
pears to  me  that  whilst  there  is  a  precise  definition  of  an 
offence  in  the  statute,  that  is  distinct  from  the  locus 
delicti;  first  the  offence,  then  the  place,  and  that  limited 
so  as  to  raise  the  question  of  jurisdiction.  If  not  com- 
mitted within  the  locus  this  raises  the  question.  Con- 
ceding the  question  as  to  excess  of  territory,  to  my  mind, 
decides  this.  There  are  many  cases  in  which  an  allega- 
tion of  no  jurisdiction  has  been  made,  and  an  enquiry  has 
been  directed,  and  I  cannot  disregard  those  authorities. 

I  think  the  words  spirit  shop  ought  to  be  determined 
in  the  plain  common  sense  meaning  of  the  phrase.  Ex- 
ciseable  liquors  are  sold  in  hotels.  The  magistrate  con- 
victs, and  we  are  told  that  we  cannot  review  because  he 
has  done  so,  and  misapprehended  the  statute.  To  this  I 
entirely  demur.  There  is  no  question  of  a  mask  here. 
When  that  arises  it  will  be  time  enough  to  determine  it ; 
but  we  are  not  to  commit  an  injustice  in  a  case  where 
the  facts  are  ascertained,  from  a  fear  that  other  persons 
may  pervert  our  judgment,  by  using  the  sign  of  an  hotel, 
whilst  in  fact  they  are  mere  spirit  dealers. 

The  Court  refused  the  bill  of  suspension,  with  expenses. 

John  Keegan,  S.S.C. — John  Richabdbon,  W.S.— Agents. 

N 


186  CASES  BEFORE  THE  HIGH  COURT 

Present, 
The  Lokd  Justice-Clerk, 
Feb.  19.  Lords  Moncreiff  and  Medwtn, 

1849. 

Her  Majesty's  Advocate — Craufurd  A,  D. — J.  M.  Bell  A.  D. 

AGAINST 

John  Gordon  Robertson — Inglis — J.  A.  Wood. 

Evidence. — Held,  that  where  a  Procurator-  fiscal,  who  had  been  em- 
ployed as  an  agent  in  the  Sheriff  Court  in  a  civil  suit,  out  of  which 
the  prosecution  arose,  had  been  present  when  the  pannel  emitted 
two  declarations,  and  had  also  acted  on  behalf  of  the  Crown  otherwise, 
he  could  not  be  examined  as  a  witness  on  behalf  of  the  Crown. 

Production. — Held,  that  the  Jury  are  not  entitled  in  a  criminal  ease 
to  inspect  the  documents  libelled  on,  and  compare  them  with  other 
productions,  it  being  the  part  of  the  Crown  to  establish  the  case  by 
evidence  given  in  the  box. 

No  22 

J.  G.  Ko-      John  Gordon  Robertson,  surgeon  at  Dingwall,  was 
'^^''^°°'    charged  with  Theft ;  as  also  Forgery,  with  Using  and 
^jPXaT'  Uttering  as  genuine  a  Forged  Writing : 

1849. 

In  so  par  as,  the  late  Arthur  Eobertson,  sometime  of  the  Ceylon 

Civil  Service,  and  thereafter  residing  in  Dingwall,  brother  of  you  the 
said  John  Gordon  Robertson,  having  been  possessed,  at  the  time  of  his 
death,  of  certain  jewels  or  other  precious  or  ornamental  stones  or  gems, 
amounting  in  number  to  1680,  or  thereby,  or  to  some  other  number  to 
the  prosecutor  unknown,  some  of  which  were  set  in  gold,  which  were 
kept  by  him  deposited  in  a  wooden  or  other  box  within  his  dwelling- 
house  at  Dingwall ;  and  the  said  Arthur  Robertson  having  died  at  his 
said  dwelling-house,  on  or  about  the  22d  day  of  February  1848,  and 
having  left  a  trust-disposition  and  deed  of  settlement,  dated  2d  No- 
vember 1846,  and  codicil  thereto  annexed,  dated  17th  February  1848, 
including  his  whole  estate,  heritable  and  moveable,  whereby  John 
Macrobin,  now  or  lately  professor  of  medicine  in  Marischal  College, 
Aberdeen,  the  Reverend  John  Robertson  Mackenzie,  now  or  lately  re- 
siding in  West  Wing  Crescent,  Birmingham,  nephew  of  the  said 
Arthur  Robertson,  and  you  the  said  John  Gordon  Robertson  were  ap- 
pointed trustees  and  executors  of  the  said  Arthur  Robertson,  and 
whereby  the  free  moveable  means  and  estate  of  the  said  Arthur  Ro- 
bertson were  bequeathed  in  two  equal  shares  to  the  said  Reverend 
John  Robertson  Mackenzie  and  you  the  said  John  Gordon  Robertson  ; 


Theft,  &e. 


AND  CIRCUIT  COUETS  OF  JUSTICIARY.  187 


and  you  the  said  John  Gordon  Robertson  liaving  been  resident,  or  at    No.  22. 

J.  G.  Ro 
bertson. 


least  repeatedly  present,  in  the  said  dwelling-house  of  the  said  Arthur 


Robertson,  during  the  said  22d  day  of  February  1848,  and  several 
days  immediately  prior  and  subsequent  thereto,  and  having  been  re-  ^^^  J"^  ' 
peatedly  resident  for  various  periods,  or  at  least  repeatedly  present,  in  1 849. 
said  dwelling-house  during  the  months  of  January,  February,  and  Theft,  &c. 
March  1848,  and  you  not  having  taken  the  charge  of  the  said  box  and 
jewels  or  other  precious  and  ornamental  stones  or  gems,  as  trustee  and 
executor  foresaid,  you  did,  on  one  or  other  of  the  days  of  the  said 
month  of  February,  or  of  the  month  of  January  immediately  preceding^ 
or  of  the  month  of  March  immediately  following,  the  particular  day 
being  to  the  prosecutor  unknown,  in  or  near  the  said  dwelling-house, 
wickedly  and  feloniously,  steal  and  theftuously  away  take,  the  said 
Box  and  the  said  Jewels  or  other  Precious  or  Ornamental  Stones  or 
gems,  or  part  thereof,  the  property,  or  in  the  lawful  possession,  of  the 
said  Arthur  Robertson,  or  of  his  trustees  and  executors  foresaid: 
LiKEAs  (2.),  on  one  or  other  of  the  days  of  the  months  of  January^ 
February,  and  March  foresaid,  or  of  the  first  twenty-foar  days  of  the 
month  of  April  1848,  the  particular  day  being  to  the  prosecutor  un- 
known, and  within  the  dwelling-house  aforesaid,  or  within  the  house 
which  was  occupied  by  you  the  said  John  Gordon  Robertson,  jn  the 
burgh  of  Elgin,  at  the  time  of  the  decease  of  the  said  Arthur  Robert- 
son, or  in  some  other  place  in  th&  counties  of  Elgin  or  Ross,  or  else- 
where, to  the  prosecutor  unknown,  you  the  said  John  Gordon  Ro- 
bertson having  resolved  to  assert  a  pretended  right  to  the  said  box  and 
jewels,  or  other  precious  or  ornamental  stones  or  gems,  on  the  false  al- 
legation that  the  same  had  been  made  over  to  you,  as  a  gift,  by  the 
said  Arthur  Robertson  during  his  lifetime,  did,  wickedly  and  feloni- 
ously, forge  and  fabricate,  or  cause  or  procure  to  be  forged  and  fabri- 
cated, a  missive  or  other  writing,  purporting  to  be  addressed  by  the 
said  Arthur  Robertson  to  you  the  said  John  Gordon  Robertson,  and 
to  be  of  the  following  or  similar  tenor  : — '  Dingwall  25*  Jany  1 84S 
'  My  Dear  John,  I  am  sory  to  say  that  I  have  been  much  worse  than. 
'  you  have  seen  me  since  my  return  from  Inv»',  and  I  wish  you  to 
'  come  here  immediately.  I  fear  the  worst,  and  have  forwarded  the 
'  Box  with  Jewels,  which  I  present  as  a  compliment  to  you.  I  there- 
'  fore  entreat  that  you  come  to  my  immediate  aid  and  pray  try  and 
'  prevail  on  M"  Robertson  to  come  along  with  you  for  I  need  all  th® 
'  comfort  you  can  afford  me  at  this  time.  With  kindest  regards  I  re- 
'  main  my  Dear  John  your  aff '  Brother,'  and  time  and  place  last  above 
libelled,  you  the  said  John  Gordon  Robertson  did,  wickedly  and  felo- 
niously, forge  and  adhibit,  or  cause  or  procure  to  be  forged  and  adhi- 
bited, to  the  said  missive  or  other  writing,  the  following  words  and 
subscription,  '  Arthur  Robertson,'  intending  the  said  subscription  to 
pass  for,  and  to  be  received  as,  the  genuine  subscription  of  the  said 
Arthur  Robertson:   Farther,  on  th&  17th  day  of  the  said  mouth  of 


188  CASES  BEFORE  THE  HIGH  COURT 

No.  22.    April,  or  on  one  or  other  of  the  first  twenty- four  days  of  the  said  mouth 
bertson"'  "^  April,  the  particular  day,  if  not  the  said  17th  day  of  April,  being  to 


the  prosecutor  unknown,  you  the  said  John  Gordon  Robertson  did, 
Feb.  19.  "  wickedly  and  feloniously,  use  and  utter,  as  genuine,  the  said  false, 
1849.  forged,  and  fabricated  missive,  or  other  writing,  having  thereon  the 
Theft,  &e.  said  forged  subscription,  you  well  knowing  the  same  to  be  forged,  by 
putting  the  same,  or  causing  or  procuring  some  person  to  the  prosecu- 
tor unknown  to  put  the  same  into  the  Post-Offioe  at  Dingwall,  or  into 
some  other  post-office  in  Scotland  to  the  prosecutor  unknown,  under  a 
cover  or  envelope,  addressed  to  Donald  Stewart,  now  or  lately  writer 
in  Tain,  or  by  delivering  the  same,  or  causing  or  procuring  some  per- 
son to  the  prosecutor  unknown,  to  deliver  the  same  to  the  said  Donald 
Stewart  at  Tain,  or  at  some  other  place  to  the  prosecutor  unknown, 
with  intent  that  the  said  Donald  Stewart,  receiving  the  said  missive, 
or  other  writing,  as  genuine,  should  hold  or  use  the  same  for  your  be- 
hoof in  defending  you  against  any  claim  made,  or  to  be  made,  against 
you  by  the  said  John  Macrobin  and  the  said  Reverend  John  Robertson 
Mackenzie,  or  either  of  them,  your  co-executors  and  co-trustees  fore- 
said, for  obtaining  delivery  of  the  said  box  and  jewels  or  other  pre- 
cious or  ornamental  stones  or  gems,  which  had  been  traced  to  your 
possession,  or  with  some  other  fraudulent  intent  to  the  prosecutor  un- 
known ;  as  also,  farther,  a  petition  having  been  presented  against  you 
the  said  John  Gordon  Robertson,  by  the  said  John  Macrobin,  and  the 
said  Reverend  John  Robertson  Mackenzie,  and  his  mandatory,  to  the 
sheriff  of  Ross  and  Cromarty  shires,  or  his  substitute,  praying,  inter 
alia,  to  have  you  decerned  and  ordained  to  deliver  up  the  foresaid 
box,  and  the  foresaid  jewels  or  other  precious  or  ornamental  stones  or 
gems,  and  you  the  said  John  Gordon  Robertson  having  opposed  said 
petition,  and  certain  procedure  having  been  had,  in  the  process  follow- 
ing thereon,  you  the  said  John  Gordon  Robertson  did,  in  support  of 
your  said  opposition,  on  the  1st  day  of  June  1848,  or  on  one  or  other 
of  the  days  of  that  month,  or  of  May  immediately  preceding,  or  of 
July  immediately  following,  at  or  near  the  General  Post-Office  in 
"Waterloo  Place,  in  or  near  Edinburgh,  or  at  or  near  one  or  other  of 
the  receiving-houses  in  or  near  Edinburgh,  where  letters  are  received 
or  posted  for  the  said  General  Post-OflBce,  the  particular  receiving- 
house  being  to  the  prosecutor  unknown,  wickedly  and  feloniously,  use 
and  utter,  as  genuine,  the  said  false,  forged,  and  fabricated  missive,  or 
other  writing,  having  thereon  the  said  forged  subscription,  you  well 
knowing  the  same  to  be  forged,  by  putting  the  same,  or  causing  or 
procuring  the  said  Donald  Stewart,  your  agent  in  the  process  foresaid, 
or  some  other  person  to  the  prosecutor  unknown,  to  put  the  same  into 
the  said  General  Post-Oifice,  or  into  one  or  other  of  the  said  receiving- 
houses,  enclosed  within  an  envelope  addressed  to  William  Ross,  then 
and  now  or  lately  sheriff-clerk-depute  of  Ross-shire,  at  Dingwall,  in 
which  envelope  you  also  enclosed,  or  caused  or  procured  the  said 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  189 

Donald  Stewart,  or  other  person  to  tbe  prosecutor  unknown,  to  enclose,     No.  22. 
a  letter  from  the  said  Donald  Stewart,  addressed  to  the  said  William  \^l^' 


Ross,  and  on  behalf  of  you  the  said  John  Gordon  Eohertson,  request- 
ing the  said  William  Ross  to  put  the  said  false,  forged,  and  fabricated  jfgj,_  °g^  ' 
missive,  or  other  writing,  into  the  foresaid  process ;  as  also,  requesting  1849. 
the  said  William  Ross  to  put  into  said  process  a  relative  minute,  con-  Theft,  &c. 
sisting  of  three  pages,  or  thereby,  which  was  signed,  on  behalf  of  you 
the  said  John  Gordon  Robertson,  by  the  said  Donald  Stewart,  and 
which  was  likewise  enclosed  in  said  envelope ;  and  the  said  William 
Ross  having,  on  or  about  the  2d  day  of  the  month  of  June  foresaid,- 
received  the  said  envelope,  and  the  said  false,  forged,  and  fabricated 
missive,  or  other  writing,  having  thereon  the  said  forged  subscription, 
and  the  said  relative  minute,  and  the  said  letter,  did,  at  Dingwall,  and 
on  or  about  the  2d  and  3d  days  of  the  said  month  of  June,  or  one  or 
other  of  said  days,  affix  his  process  mark  to  the  said  false,  forged,  and 
fabricated  missive  or  other  writing,  as  also  to  the  said  relative  minute, 
or  did  otherwise  put  the  said  false,  forged,  and  fabricated  missive  or 
other  writing,  as  also  the  said  relative  minute,  into  the  said  process, 
and  did  use  the  same  as  forming  part  of  the  said  process,  and  did  then 
or  thereafter  give  out  the  same  to  the  opposite  parties  in  said  process, 
as  papers  lodged  or  documents  produced  by  you  the  said  John  Gordon* 
Robertson. 

Before  this  prosecution  was  instituted,  there  had  been 
a  civil  suit  before  the  Sheriff  of  Ross  and  Cromarty,  re- 
specting the  box  of  jewels  said  to  have  been  stolen  by 
the  prisoner.  In  the  course  of  that  litigation,  the  letter 
said  to  have  been  forged  was  lodged  in  process  by  him  as 
genuine.  In  the  course  of  the  trial,  Mr  John  Mackenzie, 
writer  in  Dingwall,  was  called  on  the  part  of  the  Crown, 
who  being  examined  in  initialibus,  deponed — 

I  am  Procurator- fiscal  in  Dingwall.  I  took  charge  of  the  case 
iagainst  the  prisoner,  before  the  Sheriff,  on  behalf  of  the  executors  of 
the  late  Arthur  Robertson.  I  afterwards  took  up  the  matter  as  Pro- 
curator-fiscal. I  presented  two  applications,  and  took  a  considerable 
part  of  the  precognitions.  I  was  present  when  the  pannel  emitted  two 
declarations.  I  had  the  charge  of  the  case  as  agent  up  to  the  period 
when  it  was  reported  to  the  Crown  agent. 

Inglis  .  thereupon  objected  that  the  witness  was  in- 
competent, on  the  ground  of  agency  and  partial  counsel.- 

Ceaufurd  said — he  did  not  purpose  to  examine  him 
generally,  but  merely  as  to  a  fact  and  a  conversation  which 


190  CASES  BEFORE  THE  HIGH  COURT 

No.  22.    occurred  before  he  took  up  the  case  in  his  public  capacity. 

bertaon.    There  was  no  other  person  who  could  depone  to  these 

HighCourt.  matters ;  cases  of  Hagan,  Dec.  26.  1838,  Bell's  Notes, 

^i849.''   p.  248 ;  Stephens,  April  20. 1839,  Swinton,  vol.  ii.  p.  348. 

Theft,  &c.  This  case  was  stronger  than  those,  as  it  was  not  sought 

to  ask  any  question  as  to  facts  which  had  come  to  the 

witness's  knowledge  whilst  acting  in  his  public  capacity. 

Inglis  replied — it  was  immaterial  when  the  agency  and 
partial  counsel  began,  or  when  it  ended.  The  only  question 
was,  had  the  witness  been  so  mixed  up  in  the  preparation 
of  the  case  as  that  the  objection  applied.  In  this  case  it 
plainly  did,  and  consequently,  it  went  to  disqualify  the 
witness  from  giving  any  testimony  whatsoever  in  the 
-  case. 

Lord  Moncreiff.— If  we  had  time  to  examine  the 
cases,  perhaps  ground  might  be  found  for  the  admission 
of  this  witness  ;  but,  at  present,  I  think  it  safer  to  sus- 
tain the  objection.  It  is  not  any  matter,  in  my  mind, 
that,  at  the  time  of  the  interview,  he  was  merely  an  op- 
posing agent.  He  afterwards  acted  as  Fiscal,  not  merely 
in  presenting  two  applications  to  the'Sheriff,  which  might 
not  have  been  any  disqualification,  but  he  was  present  at 
the  emission  of  two  declarations,  and  went  on  to  precog- 
nosce  the  witnesses.  At  present,  I  am  not  prepared  to 
hold  that  the  witness  is  admissable  after  that. 

Lord  Wood  concurred. 

The  Lord  Jusiice-Clerk. — I  concur  also.  There  is 
no  blame  attributable  to  Mr  Mackenzie,  but  it  would 
have  been  much  better  if,  after  presenting  his  applica- 
tion, he  had  mentioned  the  fact  to  the  Sheriff,  that  he 
would  be  required  as  a  witness,  so  that  another  person 
might  have  conducted  the  case.  The  taking  precogni- 
tions is  the  important  thing,  and  that  on  which  we  pro- 
ceed. It  must  not,  however,  be  taken  that  the  Court 
has  decided  any  general  point.  The  judgment  must  be 
taken  with  reference  to  this  particular  case  only. 

The  objection  was  sustained. 

Craufurd,  in  addressing  the  jury,  wfer  alia,  informed 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  191 

them  that  they  would  have  an  opportunity  of  inspecting    No.  ^ 
the  document  which  was  libelled  as  being  forged,  and   bertson. 


comparing  it  with  the  other  productions,  which  were  ad-  HighCourt. 
mitted  to  be  the  genuine  writing  of  the  deceased.  1349. 

The  LoBD  Justice-Clerk,  in  summing  up,  informed  Theft,  &e. 
the  jury  that  the  Court  did  not  think  it  right  to  allow 
them  to  see  the  documents,  so  as  to  make  a  comparison 
in  the  box.  The  Crown  was  bound  to  have  proved  the 
case  against  the  prisoner,  by  evidence  on  which  his  coun- 
sel could  animadvert.  Whatever  might  be  the  rule  in 
civil  cases,  the  inspection  of  documents  by  fifteen  gentle- 
men, none  of  whom  could  be  examined  as  to  the  ground 
of  his  opinion,  was  not  a  satisfactory  mode  of  establishing 
guilt  in  a  criminal  court,  and  the  jury  would  accordingly 
assume,  that  unless  the  evidence  which  had  been  given 
was  conclusive  as  to  the  prisoner's  guilt,  that  the  prose- 
cution had  failed. 

The  Jury,  by  a  majority  of  one,  found  the  charge  not 
proven. 

In  respect  of  which  verdict  of  assize,  the  said  John 
Gordon  Robertson  was  assoilzied  simpUciter  and  dismissed 
from  the  bar. 


Present, 

The  Lord  Justice-Clerk, 

Lords  Mackenzie  and  Medwtn. 

Her  Majesty's  Advocate — Crau/urd  A.D. — J.  M.  Bell  A.J>. 

against 

James  Gibson  and  Malcolm  M'Millan— Zo^aM. 

Indictment — ^Eeletancy — Objection,  that  where  two  rooms  had 
been  mentioned  in  the  indictment,  and  the  charge  was  that  the  pan- 
nels  had  broken  open  a  lockfast  place  '  therein,'  without  saying  in 
which  room,  sustained,  as  too  yague. 


192  CASES  BEFORE  THE  HIGH  COURT 

No-  23.        James  Gibson  and  Malcolm  M'Millan  were  indicted 

James 

Gibson  and  for  Theft,  by  means  of  Housebreaking,  and  by  Opening 
M'Millan.  Lockfast  Pkces : 

High  Court. 

March  12.       In  SO  PAR  AS,  on  the  night  of  the  27th,  or  morning  of  the  28th,  day 

^^^'  of  November  1848,  or  on  one  or  other  of  the  days  of  that  month,  or 
Theft,  &c.  of  Ootober  immediately  preceding,  or  of  December  immediately  fol- 
lowing, you  the  said  James  Gibson  and  Malcolm  M'Millan,  did,  both 
and  each,  or  one  or  other  of  you,  wickedly  and  feloniously,  break  into 
and  enter  the  vestry  of,  or  other  apartment  connected  with.  Saint 
Mary's  Episcopal  Chapel,  situated  in  or  near  Dalkeith  Park,  in  the 
parish  of  Dalkeith,  and  county  of  Edinburgh,  by  breaking  the  glass 
and  framework,  or  part  thereof,  of  a  window  of  said  vestry  or  other 
apartment,  and  entering  thereby  to  the  said  vestry  or  other  apartment, 
and  to  the  said  chapel,  or  by  some  other  means  and  in  some  cither  way 
to  the  prosecutor  unknown ;  and  having  thus,  or  otherwise  to  the  pro- 
secutor unknown,  obtained  entrance  into  the  said  vestry  or  other 
apartment  and  chapel,  you  the  said  James  Gibson  and  Malcolm  M'Mil-  , 
Ian  did,  both  and  each,  or  one  or  other  of  you,  then  and  there  wicked- 
ly and  feloniously,  steal  and  theftuously  away  take  from  a  lockfast 
escritoire  or  writing  desk,  which  you  then  and  there,  wickedly  and 
feloniously,  opened  by  forcing  the  lid  or  top  thereof  with  a  chisel  or 
other  instrument  to  the  prosecutor  unknown,  seven,  or  thereby,  bank 
or  banker's  notes  for  one  pound  sterling  each,  one  pound  nine  shillings 
and  sixpence  sterling,  or  thereby,  in  silver  and  copper  money,  a  brace- 
let, a  brooch  :  as  also,  a  pocket-  communion  service,  consisting  of  a 
small  silver  patten,  a  small  silver  cup,  and  a  glass  bottle  with  a  silver 
top  ;  as  also,  a  small  paper  box  containing  several  postage  stamps  or 
labels  ;  as  also,  from  a  lockfast  box  in  said  vestry  or  other  apartment, 
which  box  you  then  and  there,  wickedly  and  feloniously,  forced  open 
by  means  of  a  chisel,  or  otherwise  to  the  prosecutor  unknown,  a  com- 
munion cup,  silver  gilt  or  other  metal,  a  patten  or  salver,  silver  gilt 
or  other  metal,  a  salver  or  aim's  dish,  silver  gilt  or  other  metal ;  as 
also,  from  the  said  vestry,  two  silver  or  plated  candlesticks  ;  as  also, 
from  the  said  chapel,  two  ink  bottles,  two  altar  cloths,  four,  or  there- 
by, napkins,  a  pen-knife,  a  pair  of  scissors,  a  bread-knife,  several  sur- 
plices, several  pieces  of  chamois  leather,  a  button  hook,  a  small  piece 
of  brass  from  the  eagle  lectern  of  said  chapel,  and  a  small  piece  of 
brass  from  an  altar  candlestick,  the  property,  or  in  the  lawful  posses- 
sion, of  the  vestrymen  or  congregation  of  the  said  chapel  or  of  his 
Grace  the  Duke  of  Buccleugh,  or  of  the  Reverend  William  Bird 
Bushby,  now  or  lately  clerk-chaplain  of  said  chapel,  and  now  or  lately 
Residing  at  Parsonage  of  Saint  Mary's,  Lugton,  and  parish  of  Dalkeith, 
^nd  county  of  Edinburgh. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  193 

Logan,  for  the  pannels,  objected  to  the  relevancy  of   No-  2s. 
the  indictment,  in  so  far  as  that,  having  charged  an  en-  Gibson  and 
trance  by  a  window  of  the  vestry  or  other  apartment,  M'Mm^. 
and  the  chapel,  it  proceeded  to  charge  that  they  did,  High  Court. 
then. and  there,  forcibly  open  the  escritoire  or  writing-  ^^i^ig!^' 
desk,  and  take  therefrom  the  articles  mentioned.     This^rj^eft  &c. 
was  not  sufficiently  stated,  as  it  left  it  uncertain  whether 
the  desk  was  in  the  chapel  or  in  the  vestry,  and  yet  was 
not  stated  in  the  alternative. 

Craufurd  replied,  that  it  was  uncertain  in  what  por- 
tion of  the  building  the  desk  was  placed  at  the  time  of 
the  theft. 

The  Lord  Justice-Cleek.— If  the  words  '  then  and 
'  there,'  apply  to  both  the  chapel  and  the  vestry,  it  may 
do,  but  I  much  doubt  if  this  indictment  will  bear  that 
construction.  It  would  clearly  have  been  better  to  have 
stated  it  as  it  is  .charged  farther  on  in  the  indictment, 
alternatively. 

The  first  part  of  the  indictment,  relating  to  the  ar- 
ticles stolen  from  the  desk,  was  thereupon  struck  out. 

Evidence  having  been  led  on  both  sides,  the  Jury 
found  the  pannels  guilty  under  the  libel  as  restricted. 

In  respect  of  which  verdict  of  assize,  the  said  James 
Gibson  and  Malcolm  M'Millan  were  sentenced  to  be 
transported  for  the  respective  periods  of  ten  and  seven 
years. 


194  CASES  BEFORE  THE  HIGH  COXJKT 


Present, 

March  13.  The  Lord  Justice-Clerk, 

1849. 

Lords  Mackenzie  and  Wood. 

Her  Majesty's  Adtocate. — Craufurd  A.D. — J.  M.  Bell  A.D. 


William  M'Gall. — Moncreiff. 

Indictment — Relevancy. — Circumstances  in  whicli  a  portion  of  a 
minor  was  struck  out,  as  being  uncertain  to  which  of  the  two  majors 
it  was  applicable. 

Jurisdiction. — Circumstances  in  which  an  objection  to  the  jurisdic- 
tion of  the  Court  was  repelled. 

Productions. — Circumstances  in  which  the  Court  refused  to  allow 
the  Jury  to  see  the  documents  produced,  in  accordance  with  the 
rule  stated  in  Robertson,  ante  p.  186. 

No.  24.        William  M'Gall  was  indicted  for  Breach  of  Trust 
M'Gaiu    and  Embezzlement : 


High  Court,  jj,  gQ  j,^g  ^g^  James  Jeffreys  Oswald  of  Edrington  Castle,  in  the 
1849.  '  parish  of  Mordington,  and  shire  of  Berwick,  and  now  or  lately  residing 
Embezzle-  *''^''®»  being  engaged  in  grindinggrain  at  Edrington  Mills,  in  the  parish  of 
ment  and  Mordington  aforesaid,  and  in  disposing  of  meal,  flour,  and  similar  articles, 
breach  of  ^  bakers  and  others  his  customers  who  inhabited  Dunse,  Coldingham, 
Eyemouth,  and  other  places  in  the  said  shire,  and  carried  on  business 
there,"and  the  said  James  Jeffreys  Oswald  having  employed  or  intrusted 
you  the  said  William  M'Gall  as  his  clerk  or  agent,  or  otherwise  acting 
on  his  behalf,  to  make  successive  calls,  at  certain  periodical  intervals, 
upon  his  said  customers,  for  the  purpose  of  your  procuring  orders  for 
goods  from  them,  and  of  your  uplifting  and  receiving  payments  of  ac- 
counts due  by  them  for  goods  furnished,  and  of  your  granting  discharges 
to  the  customers  therefor,  and  of  your  paying  to  the  said  James  Jeffreys 
Oswald  the  sums  of  money  so  uplifted  and  received  by  you  the  said 
William  M'Gall,  or  of  your  truly  accounting  to  the  said  James  Jeffreys 
Oswald  for  the  same ;  and,  pursuant  thereto,  you  the  said  William 
M'Gall  having,  on  numerous  occasions  between  the  first  day  of  the 
month  of  May  1847  and  the  last  day  of  the  month  of  August  1848, 
the  date  of  each  or  most  of  said  particular  occasions  being  to  the  pro- 
secutor unknown,  at  or  near  the  several  and  respective  places  of  busi- 
ness or  dwelling-houses  of  the  several  and  respective  customers  afore- 
said, uplifted  and  received,  for  behoof  of  the  said  James  Jeffreys 
Oswald,  from  the  several  and  respective  customers  foresaid,  sums  of 
money,  extending  in  all  to  a  great  amount,  in  payment  of  accounts  due 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  195 

by  the  said  several  and  respective  customers  to  the  said  James  Jeffreys  No.  24. 
Oswald;  and  it  being  the  duty  of  you  the  said  William  M'Gall,  and  ^^q^' 
in  aocordanoe  with  the  trust  committed  to  you  as  aforesaid  by  the  said 


James  Jeffreys  Oswald,  to  account  truly  to  the  James  Jeffreys  Oswald  jiarch*13." 

for  all  the  sums  of  money  uplifted  and  received  by  you  as  aforesaid,       1849. 

and  without  delay  to  pay  over  the  same  or  the  amount  thereof  to  him,  Embezzle- 

or  to  such  party  as  he  should  direct,  you  retaining  no  part  of  said  sums  ™^"'  *"•*„ 
1      J  .  it  1         ■     .1,  c  -J  i  Breach  of 

m  your  own  lianas ;  yet  nevertheless,  in  the  course  oi  your  said  tran-  Trust. 

sactions,  between  the  first  day  of  the  said  month  of  May  1847  and  the 
last  day  of  the  said  month  of  August  1848,  the  particular  dates  being 
to  the  prosecutor  unknown,  and  at  or  near  the  several  and  respective 
places  of  business  or  dwelling-houses  of  some  of  the  several  and  re- 
spective customers  foresaid,  or  at  or  near  Edrington  Castle  or  Edring- 
ton  Mills  aforesaid,  or  at  or  near  some  other  place  or  places  within  or 
near  the  said  shire  of  Berwick  to  the  prosecutor  unknown,  you  the 
said  "William  M'Gall  did,  wickedly  and  feloniously,  and  in  breach  of 
the  trust  committed  to  you  as  aforesaid,  embezzle  and  appropriate  to 
your  own  uses  and  purposes,  various  sums  of  money,  consisting  of  bank 
or  banker's  notes,  and  of  gold,  silver,  and  copper  coin,  or  one  or  more 
of  the  said  species  of  coin,  the  proportions  of  each  being  to  the  prose- 
cutor unknown,  extending  in  all  to  a  large  amount,  being  part  of  the 
money  uplifted  and  received  by  you  the  said  William  M'Gall  as  afore- 
said, and  did  fraudulently  fail  to  pay  or  account  for  the  said  various 
sums  of  money  to  the  said  James  Jeffreys  Oswald :  In  particdlak, 
Catherine  AUanshaw,  now  or  lately  baker  and  innkeeper  at  Eyemouth, 
in  the  parish  of  Eyemouth,  and  shire  aforesaid,  and  now  or  lately  re- 
siding there,  being  one  of  the  foresaid  customers  of  the  said  James 
Jeffreys  Oswald,  and  you  the  said  William  M'Gall,  between  the  first 
day  of  the  said  month  of  May  1847  and  the  last  day  of  the  said  month 
of  August  1 848,  at  or  near  the  inn  or  shop  in  Eyemouth  of  the  said 
Catherine  AUanshaw,  or  at  some  other  place  near  Eyemouth  to  the 
prosecutor  unknown,  having  uplifted  and  received  from  the  said 
Catherine  AUanshaw,  or  from  Agnes  Allan,  niece  of,  and  now  or 
lately  residing  with,  the  said  Catherine  AUanshaw,  or  from  some  other 
person  to  the  prosecutor  unknown,  acting  for  behoof  of  the  said 
Catherine  AUanshaw,  on  eleven  different  occasions,  or  thereby,  sums 
,of  money  due  by  the  said  Catherine  AUanshaw  to  the  said  James 
Jeffreys  Oswald,  amounting  to  £328  sterling,  or  thereby,  conform  to 
eleven,  or  thereby,  discharges  or  settled  accounts,  enumerated  or  set 
forth  in  inventory  No.  I.  hereto  annexed ;  or  you  having,  place  last 
above  libelled,  uplifted  and  received  as  aforesaid,  or  some  other  number 
of  occasions,  within  the  period  last  above  libelled,  to  the  prosecutor  un- 
known, sums  of  money  due  by  the  said  Catherine  AUanshaw  to  the 
said  James  Jeffreys  Oswald,  amounting  to  £328  sterling,  or  thereby, 
for  behoof  of  the  said  James  Jeffreys  Oswald,  you  the  said  William 
M'Gall  did,  wickedly  and  feloniously,  and  in  breach  of  the  trust  com 


196  CASES  BEFORE  THE  HIGH  COURT 

Wiiliam    "^'t^d  to  you  as  aforesaid  by  the  said  James  Jeffreys  Oswald,  within 

M'Gall.    the  period  of  time  last  above  libelled,  and  shortly  after  all  and  each  or 

HighCourt.  some  of  the  several  and  respective  occasions  foresaid,  on  which  you 
March  13  .  ... 

1849.  "  uplifted  and  received  money  as  aforesaid,  due  by  the  said  Catherine 

Embezzle-  -^H^Dshaw  to  the  said  James  Jeffreys  Oswald,  or  at  some  other  times 
nient  and  within  the  said  period  to  the  prosecutor  unknown,  and  at  or  near  the 
Trust  '°°  °^  ^^"P  foresaid  of  the  said  Catherine  AUanshaw  or  at  or  near 

Edrington  Castle  or  Edrington  Mills  aforesaid,  or  at  some  other  place 
or  places  in  or  near  the  shire  of  Berwick  to  the  prosecutor  unknown, 
embezzle  and  appropriate,  to  your  own  uses  and  purposes,  various  sums 
of  money,  amounting  to  £81  sterling,  or  thereby,  being  part  of  the 
money  uplifted  and  received  by  you  as  aforesaid,  for  behoof  of  the  said 
James  Jeffreys  Oswald,  and  did  fraudulently  fail  to  pay  or  account  for 
the  said  various  sums  of  money,  amounting  to  £81  sterling,  or  thereby, 
to  the  said  James  Jeffreys  Oswald :  Likeas  (2.),  George  Greenfield, 
now  or  lately  baker  at  Ooldingham,  in  the  parish  of  Coldingham,  and 
shire  aforesaid,  and  now  or  lately  residing  there,  being  one  of  the  fore- 
said customers  of  the  said  James  Jeffreys  Oswald,  and  you  the  said 
William  M'Gall,  between  the  first  day  of  the  said  month  of  May  184T 
and  the  last  day  of  the  said  month  of  August  1 848,  at  or  near  the 
shop  or  dwelling-house  in  Coldingham  of  the  said  George  Greenfield, 
or  at  some  other  place  in  or  near  Coldingham  to  the  prosecutor 
unknown,  having  uplifted  and  received  from  the  said  George  Green- 
field, or  from  some  other  person  to  the  prosecutor  unknown,  acting 
for  behoof  of  the  said  George  Greenfield,  on  fourteen  different 
occasions,  or  thereby,  suras  of  money  due  by  the  said  George  Green- 
field to  the  said  James  Jeffreys  Oswald,  amounting  to  £317  sterling, 
or  thereby,  conform  to  fourteen,  or  thereby,  discharges  or  settled 
accounts,  enumerated  or  set  forth  in  inventory  No.  II.  hereto  an- 
nexed ;  or  you  having  place  last  above  libelled,  uplifted  and  received  as 
aforesaid,  or  some  other  number  of  occasions,  within  the  period  last 
above  libelled,  to  the  prosecutor  unknown,  sums  of  money  due  by  the 
said  George  Greenfield  to  the  said  James  Jeffreys  Oswald,  amounting 
to  £317  sterling,  or  thereby,  for  behoof  of  the  said  James  Jeffreys 
Oswald,  you  the  said  William  M'Gall  did,  wickedly  and  feloniously, 
and  in  breach  of  the  trust  committed  to  you  as  aforesaid  by  the  said 
James  Jeffreys  Oswald,  within  the  period  of  time  last  above  libelled, 
and  at  or  shortly  after  all  and  each  or  some  of  the  several  and  respec- 
tive occasious  foresaid,  on  which  you  received  money  as  aforesaid,  due 
-by  the  said  George  Greenfield  to  the  said  James  Jeffreys  Oswald,  or 
at  some  other  times  within  the  said  period  to  the  prosecutor  unknown, 
and  at  or  near  the  dwelling-house  or  shop  foresaid  of  the  said  George 
Greenfield,  or  at  or  near  Edrington  Castle  or  Edrington  Mills  afore- 
said, or  at  some  other  place  or  places  in  or  near  the  shire  of  Berwick 
to  the  prosecutor  unknown,  embezzle  and  appropriate,  to  your  own 
uses  and  purposes,  various  sums  of  money,  amounting  to  £85  sterling, 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  197 

or  thereby,  being  part  of  the  money  uplifted  by  as  aforesaid  for  behoof  No.  24. 
of  the  said  James  Jeffreys  Oswald,  and  did  fraudulently  fail  to  pay  or  ji'Gall. 
account  for  the  various  sums  of  money,  amounting  to  £85  sterling,  or 


thereby,  to  the  said  James  Jeffreys  Oswald  :  Ltkeas  (3.),  John  Cock-  March  12.' 
burn,  now  or  lately  baker  in  Dunse,  in  the  parish  of  Dunse,  and  shire  iSi9. 
aforesaid,  and  now  or  lately  residing  there,  being  one  of  the  foresaid  Embezzle- 
customers  of  the  said  James  Jeffreys  Oswald,  and  you  the  said  Wil-  Breach"of 
liam  M'Gall,  between  the  first  day  of  the  said  month  of  May  1847  Trust. 
and  the  last  day  of  the  said  month  of  August  1848,  at  or  near  the 
dwelling-house  or  shop  in  Dunse  of  the  said  John  Cockburn,  or  at 
some  other  place  in  or  near  Dunse  to  the  prosecutor  unknown,  having 
uplifted  and  received  from  the  said  John  Cockburn  or  from  some  other 
person  to  the  prosecutor  unknown,  acting  for  behoof  of  the  said  John 
Cockburn,  on  twenty-eight  different  occasions,  or  thereby,  sums  of 
money  due  by  the  said  John  Cockburn  to  the  said  James  Jeffreys  Os- 
wald, amounting  to  £561  sterling,  or  thereby,  conform  to  twenty-eight, 
or  thereby,  discharges  or  settled  accounts,  enumerated  or  set  forth  in 
inventory  No.  III.  hereto  annexed ;  or  you  having,  place  last  above 
libelled,  uplifted  and  received  as  aforesaid,  on  some  other  number  of 
occasions,  within  the  period  last  above  libelled,  to  the  prosecutor  un  - 
known,  sums  of  money,  amounting  to  £561  sterling,  or  thereby,  for 
behoof  of  the  said  James  Jeffreys  Oswald,  you  the  said  William 
M'Gall  did,  wickedly  and  feloniously,  and  in  breach  of  the  trust  com- 
mitted to  you  as  aforesaid  by  the  said  James  Jeffreys  Oswald,  within 
the  period  of  time  last  above  libelled,  and  at  or  shortly  after  all  and 
each  or  some  of  the  several  and  respective  occasions  foresaid,  on  which 
you  uplifted  and  received  money  as  aforesaid,  due  by  the  said  John 
Cockburn  to  the  said  James  Jeffreys  Oswald,  or  at  some  other  times 
within  the  said  period  to  the  prosecutor  unknown,  and  at  or  near  the 
dwelling-house  or  shop  foresaid  of  the  said  John  Cockburn,  or  at  or 
near  Edrington  Castle  or  Edrington  Mills  foresaid,  or  at  some  other 
place  or  places  in  or  near  the  shire  of  Berwick  to  the  prosecutor  un- 
known, embezzle  and  appropriate,  to  your  own  uses  and  purposes, 
various  sums  of  money,  amounting  to  £61  sterling,  or  thereby,  being 
part  of  the  money  uplifted  and  received  by  you  as  aforesaid  for  behoof 
of  the  said  James  Jeffreys  Oswald,  and  did  fraudulently  fail  to  pay  or 
ficcount  for  the  said  various  sums  of  money,  amounting  to  £81  sterling, 
or  thereby,  to  the  said  James  Jeffreys  Oswald :  Likeas  (4.),  Robert 
Wilson,  now  or  lately  baker  in  Dunse  aforesaid,  and  now  or  lately  re- 
siding there,  being  one  of  the  foresaid  customers  of  the  said  James 
Jeffreys  Oswald,  and  you  the  said  William  M'Gall,  between  the  first 
day  of  the  month  of  December  1847  and  the  last  day  of  the  said 
month  of  August  1848,  at  or  near  the  dwelling-house  or  shop  in  Dunse 
of  the  said  Robert  Wilson,  having  uplifted  and  received  from  the  said 
Robert  Wilson,  or  from  some  other  person  to  the  prosecutor  unknown, 
acting  for  behoof  of  the  said  Robert  Wilson,  on  twelve  different  occa- 


198  CASES  BEFORE  THE  HIGH  COURT 

No.  24.     eions,  or  thereby,  sums  of  money  due  by  the  said  Robert  Wilson  to 
M'GaU^    the  said  James  Jeffreys  Oswald,  amounting  to  £140  sterling,  or  there- 


„.  ,  _,  by,  conform  to  twelve,  or  thereby,  discharges  or  settled  accounts,  enu- 
March  13.  merated  or  set  forth  in  inventory  No.  IV.  hereto  annexed  ;  or  you 
^^^^-  having,  place  last  above  libelled,  uplifted  and  received  as  aforesaid,  on 
Embezzle-  some  other  number  of  occasions,  within  the  period  last  above  libelled, 
mentand  i^  ^]^^  prosecutor  unknown,  sums  of  money,  amounting  to  £140  ster- 
Trust  ling,  or  thereby,  for  behoof  of  the  said  James  Jeffreys  Oswald,  you  the 
said  William  M'Gall  did,  wickedly  and  feloniously,  and  in  breach  of 
the  trust  committed  to  you  as  aforesaid  by  the  said  James  Jeffreys 
Oswald,  within  the  period  of  time  last  above  libelled,  and  at  or  shortly 
after  all  and  each  or  some  of  the  several  and  respective  occasions  fore- 
said, on  which  you  uplifted  and  received  money  as  aforesaid,  due  by 
the  said  Robert  Wilson  to  the  said  James  Jeffreys  Oswald,  or  at  some 
other  times  within  the  period  last  above  libelled  to  the  prosecutor  un- 
known, and  at  or  near  the  dwelling-house  or  shop  foresaid  of  the  said 
Robert  Wilson,  or  at  or  near  Edrington  Castle  or  Edrington  Mills 
aforesaid,  or  at  some  other  place  or  places  in  or  near  the-  shire  of  Ber- 
wick to  the  prosecutor  unknown,  embezzle  and  appropriate,  to  your 
own  uses  and  purposes,  various  sums  of  money,  amounting  to  £27 
sterling,  or  thereby,  being  part  of  the  money  uplifted  and  received  by 
you  as  aforesaid  for  behoof  of  the  said  James  Jeffreys  Oswald,  and  did 
fraudulently  fail  to  pay  or  account  for  the  said  various  sums  of  money, 
amounting  to  £27  sterling,  or  thereby,  to  the  said  James  JeSreja  Os- 
wald :  LiKEAs  (5.),  Robert  Keldie,  now  or  lately  baker  in  Dunse 
aforesaid,  and  now  or  lately  residing  there,  being  one  of  the  foresaid 
customers  of  the  said  James  Jeffreys  Oswald,  and  you  the  said  William 
M'Gall,  between  the  first  day  of  April  1848  and  last  day  of  the  said 
month  of  August  1848,  at  or  near  the  dwelling-house  or  shop  of  the 
said  Robert  Keldie,  or  at  or  near  the  dwelling-house  or  inn  of  William 
Jack,  now  or  lately  innkeeper  at  Dunse  aforesaid,  and  now  or  lately 
residing  there,  having  uplifted  and  received  from  the  said  Robert 
Keldie,  or  from  the  said  William  Jack,  or  from  some  other  person  to 
the  prosecutor  unknown,  acting  for  behoof  of  the  said  Robert  Keldie, 
on  eight  different  occasions  or  thereby,  sums  of  money  due  by  the  said 
Robert  Keldie  to  the  said  James  Jeffreys  Oswald,  amounting  to  £80 
sterling,  or  thereby,  conform  to  seven,  or  thereby,  discharges  or  settled 
accounts,  enumerated  or  set  forth  in  inventory  No.  V.  hereto  annexed  ; 
or  you  having,  place  last  above  libelled,  uplifted  and  received  as  afore- 
said, on  some  other  number  of  occasions  within  the  period  last  above 
libelled  to  the  prosecutor  unknown,  sums  of  money  due  by  the  said 
Robert  Keldie  to  the  said  James  Jeffreys  Oswald,  amounting  to  £80 
sterling,  or  thereby,  for  behoof  of  the  said  James  Jeffreys  Oswald,  you 
the  said  William  M'Gall  did,  wickedly  and  feloniously,  and  in  breach 
of  the  trust  committed  to  you  as  aforesaid  by  the  said  James  Jeffreys 
Oswald,  within  the  period  of  time  last  above  libelled,  and  at  or  shortly 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  199 

after  all  and  each  or  some  of  the  several  and  respective  occasions  fore-    No.  24. 

said,  on  which  you  uplifted  and  received  money  as  aforesaid,  due  by    ^Igf'^ 

the  said  Robert  Keldie  to  the  said  James  Jeffreys  Oswald,  at  or  near  — 

the  respective  dwelling-houses  or  shop  or  inn  foresaid  of  the  said  ji|ygh°i3.' 

Robert  Keldie,  or  of  the  said  William  Jack,  or  at  or  near  Edrington      1 849. 

Castle  or  Edrington  Mills  aforesaid,  or  at  some  other  place  or  places  Embezzle- 

in  or  near  the  shire  of  Berwick  to  the  prosecutor  unknown,  embezzle  ment  and 
,  .  ,       ,  J  .  f  Breach  of 

and  appropriate,  to  your  own  uses  and  purposes,  various  sums  ot  rpj.j,gj._ 

money,  amounting  to  £20  sterling,  or  thereby,  being  part  of  the  money 

uplifted  and  received  by  you  as  aforesaid  for  behoof  of  the  said  James 

Jefeeys  Oswald,  and  did  fraudulently  fail  to  pay  or  account  for  the 

said  various  sums  of  money,  amounting  to  £20  sterling,  or  thereby,  to 

the  said  James  Jeffreys  Oswald. 

MoNCREiFF,  for  the  pannel,  objected  to  the  relevancy 
of  the  indictment,  in  so  far  as  respected  the  third  charge. 
It  was  too  ambiguous.  The  major  charged,  as  well  brpach 
of  trust,  as  also  embezzlement,  whilst  the  minor  set  forth 
that  at  the  place  specified  in  the  third  charge,  the  pannel 

*  did  embezzle  and  appropriate  to  his  own  uses  and  pur- 
'  poses  various  sums  of  money,  amounting  to  £61  ster- 
'  ling,  or  thereby,  being  part  of  the  money  uplifted  and 

*  received  by  him  as  aforesaid,  for  behoof  of  the  said 
'  James  Jeffreys  Oswald,  and  did  fraudulently  fail  to  pay 
'  or  account  for  the  said  various  sums  of  money,  amount- 
'  ing  to  the  sum  of  £81  or  thereby,  to  the  said  James 
'  Jeffreys  Oswald.'  This  left  it  uncertain  whether  it  was 
intended  to  charge  embezzlement  or  breach  of  trust,^  by 
fraudulently  failing  to  pay  or  account  to  the  extent  of 
£61  sterling. 

The  Lord  Justice-Cleek. — ^The  objection  must  be 
sustained,  and  that  portion  of  the  charge  must  be  struck 
out. 

MoNCREiFP  then  objected,  that  the  locus  of  the  offence 
was  not  sufiiciently  described.  No  doubt,  it  was  not 
necessary  to  be  very  strict  in  describing  a  place  where  an 
offence  was  committed,  provided  it  was  sufficient  to  shew 
that  it  was  within  the  jurisdiction  of  the  Court.  But 
there  was  no  precedent  to  sustain  an  indictment  where 
the  locus  was  set  forth  in  such  an  indefinite  manner  as 


200  CASES  BEFORE  THE  HIGH  COURT 

No.  24.    that  it  was  '  at  or  near  Edrinffton  Castle  or  Edringtonf 

William         , ,  „  „  ,  , 

M'Gaii.    '  Mills,  aforesaid,  or  at  or  near  some  other  place  or 


High  Court. '  places,  ill  or  near  the  shire  of  Berwick,  to  the  prose- 

1849.  "  '  cutor  unknown.'     For  aught  that  appeared  in  the  libel 

Embezzle-  it  Blight  have  been  over  the  border,  and  consequently, 

Breach°of  beyond  the  jurisdiction  of  the  Court.     This  was  too  am- 

Trust.     ijiguous,  as  the  Court  must  take  judicial  notice  that  the 

county  of  Berwick  bordered  on  an  adjoining  country,  to 

the  courts  of  which  the  pannel  would  be  amenable  if  the 

offence  was  committed  beyond  the  bounds  of  Scotland. 

Bell,  A.D. — It  was  matter  of  form  to  describe  the 
locus  in  the  manner  set  forth  in  this  indictment,  and  the 
Court  could  not  presume  against  their  own  jurisdiction. 
The  LoED  Justice-Cleek. — The  Court  have  no  doubt 
on  the  question.  In  strictness,  no  particular  place  is  in  this 
peculiar  case  necessary  to  be  set  forth  in  the  indictment, 
and  the  more  general  words  '  at  or  near,'  a're  only  stated  for 
technical  purposes.  In  the  present  case,  it  seems  very  evi- 
dent that  sufficient  is  set  forth  to  give  the  Court  jurisdic- 
tion over  the  alleged  offence.  It  is  said  that  he  received  the 
money  in  Scotland,  and  failed  to  account  to  his  employer 
therein.  It  is  impossible  to  say  where  the  guilty  inten- 
tion of  retaining  the  money  which  he  had  received  on 
behalf  of  his  employer  was  first  adopted,  but  it  would  be 
presumed,  in  the  absence  of  opposing  evidence,  that  he 
had  all  along  had  the  intention  on  which  he  acted. 

The  prisoner  having  pleaded  Not  Guilty,  and  a  long 
proof  having  been  led,  consisting  in  part  of  receipts  given 
by  the  pannel  to  persons  from  whom  he  had  received 
money  on  behalf  of  Mr  Oswald,  one  of  the  jurors,  after 
the  Lord  Justice-Clerk  had  explained  their  import  in  the 
course  of  his  charge,  requested  to  see  these  documents. 

Lord  Justice-Clerk. — Gentlemen, — You  had  better 
not  have  them.  The  Crown  must  prove  their  case  by 
evidence  which  can  be  tested  by  cross-examination,  and 
you  are  to  judge  on  such  evidence,  so  tested,  and  such 
only.  If  you  do  not  think  that  the  case  for  the  prosecu- 
tion has  been  proved  in  this  way,  you  will  assume  that  it 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  201 

has  failed.    The  mere  inspection  of  documents  by  fifteen   ^°[^^^ 
gentlemen  in  a  jury-box,  is  not  a  satisfactory  mode  of   M'Gaii. 
establishing  guilt  against  any  party,  and  it  is  better  that  ?]sh  court. 
you  should  proceed  to  acquit  than  to  convict  on  any  con-     i849. 
jecture  which  you  could  so  form,  and  which  the  prisoner  Embezzie- 

.„,..  T  •!       ment  and 

has  had  no  opportunity  of  explaining.  Jurymen  might  Breach  of 
by  such  comparison  easily  mislead  themselves,  and  dif-  "^" 
ferent  Jurymen  might  go  on  different  conjectures  as  to 
handwriting,  or  as  to  the  accuracy  or  inaccuracy  of  entries 
in  the  accounts;  while,  if  these  had  been  stated; and 
known  to  the  parties,  they  might  be  shewn  to  be  all 
erroneous  and  unsatisfactory.  If  the  evidence  given  does 
satisfy  you  respecting  the  documents,  it  is  better  to  acquit. 
The  Jury,  by  a  majority,  found  the  pannel  guilty  of  the 
first  and  fourth  charges  as  libelled,  under  deduction  of 
£20  from  the  first  charge  and  of  £10  from  the  fourth 
charge. 

In  respect  of  which  verdict  of  Assize,  the  Court  ad- 
adjudged  the  pannel  to :  be  imprisoned  in  the  prison  of 
Perth  for  the  period  of  twelve  calendar  months. 


Present, 
The  Lord  Jcstice-Glerk,  *^4g    ' 

Lords  Moncreipf,  Mbdwyn,  Cockburn,  and  Wood. 

John  Etch  and  Alfred  Golf,  Suspenders — Deas. 

AGAINST 

John  Burnett,  Respondent — Ai/toun. 

Suspension — ^Attempt  to  Steal — Rogue  and  Vagabond. — Held, 
refusing  a  Note  of  Suspension,  that  it  was  an  offence  cognisable 
in  a  Police  Court,  to  put  a  hand  into  a  passenger's  pocket  with  in- 
tent to  steal,  and  that  a  party  would  be  properly  convicted  as  a 
rogue  and  vagabond  in  respect  thereof. 

6 


202  CASfeS  BEFORE  THE  HIGH  COURT 

No.  25.  On  the  5th  day  of  March  1849,  the  suspenders  were 
Golf «.  sentenced  to  be  imprisoned  in  the  prison  of  Glasgow,  by 
"™*  ■   one  of  the  bailies  of  the  Police  Court  there,  in  virtue  of 


Mlrch'is.  a  complaint  presented  to  him  at  the  instance  of  the  re- 
'^^^'  spondent,  charging  the  suspender  '  with  having,  on  Satur- 
Suspension. ,  ^^^  ^q^^^  in  or  near  Queen  Street,  and  in  or  near  St 
•  Vincent's  Place,  Glasgow^  actors  or  actor,  or  art  and 
'  part,  feloniously  attempted  to  pick  the  pockets  of  Seve- 
'  ral  of  the  lieges,  whose  names  and  places  of  abode  were 
'  tb  the  prosecutor  unknown,  and  With  being  rogues  and 
'•  Vagabonds,  following  no  lawful  employment.' 

tt  appeared  that  one  of  the  suspenders  had  been  seen 
by  a  policeman  with  his  hand  in  the  pocket  of  a  passenger 
in  the  street,  and  that  they  were  followed  by  him,  to- 
gether with  an  assistant  whom  he  found,  and  apprehended 
at  the  distance  of  a  mile  from  the  place  where  the  al- 
leged offence  was  committed.  Having  been  taken  before 
the  presiding  bailie,  the  charge  of  being  rogues  and  vaga- 
bonds Was  abandoned,  hoi  the  case  was  proceeded  with 
on  the  charge  of  attempting  to  pick  pockets,  and  a  &&&- 
viction  ensued. 

Deas,  for  the  suspenders, — ^The  only  charge  which 
went  to  proof  was  that  of  an  attempt  to  pick  the  pocket 
of  some  persons  unknown.  This  was  not  an  offence.  Ex- 
cept in  certain  very  great  crimes,  the  law  did  not  take 
cognizance  of  abortive  attempts.  An  attempt  to  steal 
had  never  been  found  relevant  in  the  Court  of  Justiciary, 
rmilto  magis  it  was  not  an  offence  in  a  Police  Court, 
where  the  parties  were  summarily  tried,  and  the  means 
of  disproving  such  a  charge  were  obviously  very  difficult, 
if  not  impossible,  from  the  want  of  notice  and  other  ad- 
vantages given  in  the  Court  of  Justiciary. 

The  Lord  Justice-Clerk. — This  may  not  be  a  petty 
offence.  The  other  day  a  party  came  down  to  Edin- 
burgh with  £8000,  which  he  had  been  afraid  to  trust  to 
ia  London  banker  to  transmit  to  this  city.  It  Stirely 
would  nOt  have  been  a  petty  offence  to  have  endeavoured 
to  pick  that  gentleman's  pocket,  and  there  is  no  doubt 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  203 

that  the  police  havinsf  seen  the  hand  in  the  pocket,  was    N"-  25. 

r  o  r  '  Etch  and 

quite  sufficient  to  warrant  a  conviction,  without  calling  the    Golf  v. 
party  whose  pockets  were  attempted  to  be  rifled.  All  locus L 

..,..,  .,-1,1  1  1         HighCourt. 

pcmitenticB  must  be  considered  to  have  been  gone  when  March  is. 
the  hand  was  inserted  in  the  pocket.     Practically,  how-  — ?-J 

I.  1       . 1  .  !■  •      J.  xi  1         Suspension. 

consider  this  a  proceeding  against  the  suspenders 

as  rogues  and  vagabonds,  of  which  their  conduct  was  the 

best  and  most  satisfactory  proof  that  could  be  desired. 

The  rest  of  the  Judges  concurred,  and  the  note  of  sus- 
pension was  accordingly  refused,  with  expenses. 

John  Leishman,  W.S, — Agent. 


Henby  William  Giles,  Suspender — Craufurd. 

AGAINST 

Edmfnd  Baxter,  Eespondent — Deas. 

Suspension — Interlocutor — Jurisdiction. — Held,  (1.)  That  all  in- 
terlocutors in  a  cause  in  an  Inferior  Court,  must  be  properly  signed 
as  required  by  law,  and  that  the  Court  will  suspend  if  any  material 
stage  of  the  proceedings  is  left  unauthenticated.  (2.)  That  where 
the  Court  has  original  jurisdiction  over  the  subject  matter,  they 
have  also  the  power  of  review,  although  the  proceedings  are  of  a 
civil  nature. 

This  was  a  Suspension  of  a  decree  of  the  Justices  of  No.  26. 
the  Peace  for  the  county  of  Forfar,  pronounced  on  a  Baxter! 
summary  complaint,  at  the  instance  of  the  respondent  HighComt. 


against  the  complainer,  as  having  contravened  the  pro-     ^^^q 


March  IS. 

visions  of  the  6th  and  7th  "Vict.  c.  68,^ '  in  so  far  as  he  ^ 


Suspension, 


1  By  the  statute  eth  and  7th  Vict.,  cap.  68,  sect.  2,  it  is  enacted, 
'  That,  except  as  aforesaid,  it  shall  not  be  lawful  for  any  person  to 
'  have. or  keep  any  house  or  other  place  of  public  resort  in  Great 
'  Britain  for  the  public  performance  of  stage  plays  without  authority, 
♦  by  virtue  of  letters-patent  from  her  Majesty,  her  heirs  and  sucoes- 
'  SOTS,  or  predecessors,  or  without  license  from  the  Lord  Chamberlain 
'  of  her  Majesty's  household  for  the  time  being,  or  from  the  justices 


204  CASES  BEFORE  THE  HIGH  COURT 

No.  26.  '  had  for  sometime  back  been  in  the  practice  of  keeping 
Baxter.    '  opcQ  an  ercction  or  booth,  m  or  adjoining  to  the  oea- 

High  Court- '  gate  Street  of  Dundee,  or  upon  a  yard  or  piece  of 
7u9.  '  '  ground  adjoining  said  Street,  and  on  the  north  side 

Suspension. '  thereof,  in  the  parish  of  Dundee,  and  county  of  Forfar  ; 
'  which  erection  was  formed  or  composed  partly  of  wood 


of  the  peace,  as  hereinafter  provided ;  and  every  person  who  shall 
offend  against  this  enactment  shall  be  liable  to  forfeit  such  sum  as 
shall  be  awarded  by  the  court  in  which,  or  the  justices  by  whom,  ho 
shall  be  convicted,  not  exceeding  £20,  for  every  day  on  which  such 
house  or  place  shall  have  been  so  kept  open  by  him  for  the  purpose 
aforesaid  without  legal  authority.' — Sect.  11,  '  That  every  person 
who  for  hire  shall  act  or  represent,  or  cause,  permit,  or  suffer  to  be 
acted  or  represented,  any  part  in  any  stage-play  in  any  place  not 
being  a  patent  theatre,  or  duly  licensed  as  a  theatre,  shall  forfeit 
such  sum  as  shall  be  awarded  by  the  court  iu  which,  or  the  justices 
by  whom,  he  shall  be  convicted,  not  exceeding  £10  for  every  day 
'  on  which  he  shall  so  offend.' — Sect.  19,  '  That  all  the  pecuniary  penal- 

•  ties  imposed  by  this  act  for  offences  committed  in  England  may  be 
'  recovered  in  any  of  her  Majesty's  Courts  of  Record  at  Westminster, 
'  and  for  offences  committed  in  Scotland  by  action  or  summary  com- 
'  plaint  before  the  Court  of  Session  or  Justiciary  there ;  or  for  offences 
'  committed  in  any  part  of  Great  Britain  in  a  summary  way  before 
'  two  justices  of  the  peace  for  any  county,  riding,  division,  liberty, 
'  city,  or  burgh  where  any  such  offence  shall  be  committed,  by  the 
'  oath  or  oaths  of  one  or  more  credible  witness  or  witnesses,  or  by  the 
'  confession  of  the  offender ;  and  in  default  of  payment  of  such  penalty, 
'  together  with  the  costs,  the  same  may  be  levied  by  distress  and  sale 

•  of  the  offender's  goods  and  chattels,  rendering  the  overplus  to  such  of- 
'  fender,  if  any  there  be,  above  the  penalty,  costs,  and  charge  of  dis- 
'  tress ;  and  for  want  of  sufficient  distress  the  offender  may  be  impri- 

•  soned  in  the  common  gaol  or  house  of  correction  of  any  such  county, 
'  riding,  division,  liberty,  city,  or  burgh,  for  any  time  not  exceeding 
'  six  calendar  months.' — Sect.  20, '  That  it  shall  be  lawful  for  any 
'  person  who  shall  think  himself  aggrieved  by  any  order  of  such  jus- 
'  tices  of  the  peace,  to  appeal  therefrom  to  the  next  general  or  quarter 
'  sessions  of  the  peace  to  be  holden  for  the  said  county,  riding,  division, 
'  liberty,  city,  or  burgh,  whose  order  therein  shall  be  final.' — Sect.  21, 
'  That  the  said  penalties  for  any  offence  against  this  act  shall  be  paid 
'  and  applied  in  the  first  instance  toward  defraying  the  expenses  in- 
'  curred  by  the  prosecutor,  and  the  residue  thereof  (if  any)  shall  be  paid 
'  to  the  use  of  her  Majesty,  her  heirs  and  successors.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  205 

'  or  canvass,  and  was  partly  rested  against  stone  walls,    No.  ae. 

'  and  was  called  the  '  Sanspareil  Theatre,'  or  by  some    Baxter. 

'  other  name  similar  thereto  ;  and  that  the  complainer  HighConrt. 

'  had  been  in  the  habit  nightly  or  frequently  performing    ^849.^*' 

'  or  causing  to  be  performed,  stage  plays  therein,  with-  suspension 

'  out  any  license  or  other  legal  authority  being  granted 

'  to  him  for  that  purpose,  in  terms  of  the  provisions  of 

'  the  said  Act  of  Parliament ;  and  particularly,  that  the 

'  complainer  did,  on  the  evening  of  Tuesday,  the  30th 

'  day  of  January   1849,   contravene   the  said   recited 

'  Act  of  Parliament,  by  performing,  or  causing  to  be 

'  performed,  without  any  license  or  other  legal  authority 

'  in  said  erection  or  booth,  a  stage  play  or  other  enter- 

'  tainment  of  the  stage  called  the  '  Innkeeper  of  Abbe- 

"  ville,'  and  that  bills  or  programmes  thereof,  as  well  as 

'  of  other  such  representations,  given  and  performed  in 

'  said  theatre,  were  circulated  throughout  the  town  of 

'  Dundee,  but  without  the  name  and  place  of  abode  of 

'  the  manager,  as  required  by  the  said  statute ;   and 

'  generally,  that  the  complainer  had  carried  on  and  con- 

'  ducted  the  said  theatre  without  a  license,  and  had 

'  performed  stage  plays  therein,  in  a  manner  contrary 

'  to  law,  and  in  violation  of  the  provisions  of  the  said 

'  Act  of  Parliament.' 

The  prayer  of  the  complaint  was,  that  the  Justices 
should  grant  warrant  for  summoning  the  complainer  to 
appear  before  any  two  of  their  number,  at  a  time  and 
place  to  be  fixed  by  them,  and  failing  his  so  appearing, 
to  grant  warrant  for  apprehending  him,  and  bringing 
him  before  the  Justices  for  examination,  and  likewise  to 
grant  warrant  for  summoning  witnesses,  to  be  examined 
regarding  their  knowledge  of  the  premises ;  and  on  proof 
thereof,  or  part  thereof  by  confession,  or  otherwise,  to 
find  him  the  said  Henry  William  Giles  guilty  of  con- 
travening the  foresaid  statute ;  and  to  decern  against 
him  for  such  penalties  in  respect  of  such  acts  of  con- 
travention, and  in  terms  of  the  provisions  of  said  sta- 
tute as  they  might  consider  proper,  to  be  recovered  and 


206  CASES  BEFORE  THE  HIGH  COUBT 

No.  26.    applied  as  authorised  and  directed  by  said  statute,  and 

Baxter!    with  the  whole  costs  of  procedure  and  recovery,  and  to 

High  Court,  do  farther  and  otherwise  in  the  premises  as  by  the  said 

^ml^'  statute  their  Honours  were  authorised  and  empowered 

Suspension.  *«  ^0,  and  as  to  their  Honours  might  seem  meet. 

Upon  advising  this  complaint,  the  following  deliver- 
ance was  pronounced : — 

'  Dundee,  31st  January  1849. — The  Justices  subscribing  having 
'  considered  the  foregoing  Petition  and  Complaint,  grant  warrant  to 
'  Constables  of  the  Peace  and  other  officers  of  the  law,  to  serve  a 
'  copy  of  the  said  complaint,  and  of  this  deliverance,  on  the  said  Henry 
'  Willfam  Giles,  or  Henry  Giles  complained  upon  ;  and  ordain  him  to 
'  appear  personally  before  us,  or  any  two  or  more  of  Her  Majesty's 
'  Justices  of  the  Peace  for  the  county  of  Forfar,  within  the  Town 
'  Hall  of  Dundee,  on  Friday  the  second  day  of  February  next,  at 
'  twelve  o'clock  noon,  to  answer  to  the  said  complaint,  with  certifica- 
'  tion  :  Also  grant  warrant  for  summoning  witnesses. 

'  Alex.  Lawson,  J.  P. 
'  William  Thoms,  J.  P. 

No  copy  of  this  complaint  was  served  on  the  com- 
plainer  until  the  evening  of  the  day  before  that  on  which 
he  was  cited  to  appear  before  the  Justices,  at  twelve  o'clock 
noon.  He  lodged,  however,  a  short  answer  to  the  com- 
plaint, denying  generally  the  statement  contained  in  it, 
and  urging  several  pleas,  amongst  others,  that  the  per- 
son Robert  Geikie,  who  served  the  complaint,  was  not  a 
constable  or  admitted  officer  of  Court,  in  which  charac- 
ter he  had  acted,  and  that,  therefore,  and  upon  other 
grounds,  the  complaint  must  be  dismissed. 

The  Justices,  at  once  and  without  proof,  repelled  all 
the  pleas  urged,  and  refused  any  prorogation  to  allow 
time  to  precognosce  witnesses  against  the  complainer,  or 
to  adduce  witnesses  to  rebut  the  charge  made  against 
him.  Whereupon  the  complainer  and  his  agent  imme- 
diately left  the  Court,  and  without  any  request  or  order 
that  the  complainer  should  remain,  the  Justices  went  on 
with  the  case  in  his  absence,  and  pronounced  the  follow- 
ing sentence  or  conviction  : — 


ANO  CIRCUIT  COURTS  OF  JUSTICIARY.  207 

'  The  Justices  having  considered  the  complaint,  with  the  proof  ad-  No.  26. 
'  duced,  and  the  whole  procedure,  find  it  proved  that  the  said  Henry  jjaxterl 
'  William  Giles  or  Henry  Giles,  complained  upon,  on  the  evening  — - 

'  of  Tuesday  last,  the  30th  day  of  January  last,  did  keep  open  a  house  March  IS." 
'  or  erection  of  public  resort,  situated  in  the  Seagate  Street  of  Dundee,  ^^^^- 
'  for  the  public  performance  of  stage  plays,  and  designed  by  the  name  Suspension*. 
'  of  the  "  Sanspareil,"  and  that  there  was  performed  in  the  said  house 
'  or  erection,  or  theatre,  on  the  evening  aforesaid,  a  play  or  drama  en- 
'  titled  "  The  Innkeeper  of  Abbeville,"  and  that  without  any  license  in 
'  favour  of  the  said  Henry  William  Giles,  and  in  contravention  of  the 
'  Act  of  Parliament  libelled  on  :  The  Justices  therefore  find,  that  the 
'  said  Henry  William  Giles  or  Henry  Giles  has,  in  terms  of  the  said 
'  Act  of  Parliament,  incurred  for  the  said  ofience  a  penalty  not  exceed- 
'  ing  £20,  but  which  the  Justices  hereby  modify  to  £lO,  and  decern 
'  and  adjudge  the  said  Henry  William  Giles  or  Henry  Giles  instantly 
'  to  make  payment  to  the  complainer  of  the  said  mitigated  penalty  of 
'  £10,  hereby  awarded,  to  be  accounted  for  and  applied,  in  the  first 
'  place,  towards  defraying  the  expenses  incurred  by  the  prosecutor,  and 
'  the  remainder  thereof  to  be  paid  to  the  use  of  Her  Majesty,  or  her 
'  heirs  or  successors  ;  a,nd, /ailing  pai/ment,  grant  warrant  for  levying 
'  the  said  penalty  by  distress  and  sale  of  the  said  Henry  William 
'  Giles's  or  Henry  Giles's  goods  and  chattels,  all  in  terms  of  the  pro- 
'  visions  of  the  said  Act  of  Parliament,  and  decern.  Five  words  de- 
'  leted. 

'  John  Ogilvy. 

'  Wm.  Thoms,  J.  p. 

'  Jab.  Brown,  J.  P. 

'  John  Thomson,  J.  P. 

'  Alex.  Lawson,  J.  P.' 

Amongst  the  reasons  of  suspension  was  the  following  : 
That '  It  was  illegal  and  incompetent  for  the  Justices  to 
'  repel  all  the  complainer's  defences  or  pleas  without 
'  proof,  and  before  having  proceeded  to  the  consideration 
'  of  the  case  on  the  merits,  as  it  is  proved  they  did  by 
'  the  minutes  of  their  sederunt,  which  run,  inter  alia,  in 
'  these  terms : — "  The  cause  being  called,  and  the  de- 
"  fender  having  failed  to  appear,  Mr  William  Allen 
"  Flowerdew,  writer  in  Dundee,  appeared  for  the  defen- 
"  der,  and  gave  in  written  answers  to  the  complaint, 
"  which  were  verbally  answered  by  the  Procurator-fiscal ; 
"  aijid  the  Justices  having  considered  the  objections 
"  stated  on  the  said  answers,  and  the  answers  made  to 


208  CASES  BEFOEE  THE  HIGH  COURT 

No.  26.    «  these  objections  by  the  Procurator-fiscal,  the  Justices 

Giles  ■».  J  ■'  ,  .        .  , 

Baxter.    "  unauimously  repelled  the  whole  of  these  objections. 

High  Court. '  This  minute  or  interlocutor,  or  whatever  else  it  may 
1849.  '  '  be  called,  was  not  signed  by  two  Justices,  as  required. 

Suspension. '  nor  was  it  signed  even  by  one.  The  defences  or  pleas, 
'  therefore,  which  were  to  exclude  the  complaint  alto- 
'  gether,  have  not  yet  been  legally  or  competently  dis- 
'  posed  of.' 

The  respondent  answered,  that  the  interlocutor 
repelling  the  suspender's  objections,  which  had  been 
pleaded  in  limine,  as  a  bar  to  farther  procedure,  was 
pronounced  only  to  the  effect  of  allowing  the  case  to 
proceed,  and  the  proof  to  be  led,  and  was  signed  by  the 
preses  of  the  Justices  in  presence,  and  with  the  sanction 
of  a  full  bench.  Besides,  the  procedure  would  have  been 
unobjectionable,  even  if  there  had  been  no  formal  inter- 
locutor repelling  the  objections  which  had  been  thus  urged 
as  preliminary  pleas,  these  objections  being  sufficiently  dis- 
posed of,  by  going  on  to  consider  and  to  give  judgment 
upon  the  merits.  There  was  no  necessity,  in  a  case  like 
this,  that  the  suspender  should  be  present  at  the  proof 
and  subsequent  procedure.  The  suspender  could  have 
no  right,  after  appearing  along  with  his  agent,  and  join- 
ing issue  in  the  cause,  to  withdraw  himself  from  the 
Court,  to  the  effect  of  creating  an  objection  to  the  pro- 
ceedings, as  having  been  continued  and  brought  to  a 
close  in  his  absence.  He  had  barred  himself,  personali 
ewceptione,  by  appearing  in  Court  and  pleading  to  the 
complaint,  from  maintaining  any  such  objection,  even  if 
the  statute  had  contemplated  his  personal  presence. 
But  there  was  not  a  word  in  the  statute  to  countenance 
such  a  plea ;  and  it  was  in  no  view  necessary  to  enlarge 
upon  this  objection. 

The  Court  having  inspected  the  interlocutor  repelling 
the  objections  requesting  delay,  and  finding  that  it  was 
not  signed,  called  upon  Deas,  for  the  respondent,  to  sus- 
tain the  proceedings  sought  to  be  suspended,  in  respect 
that  the  objections  thus  repelled  were  directed  against  the 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  209 

title  to  pursue — ^the  relevancy  of  the  offence— the  compe-    No.  26. 
tency  of  the  Court — and  the  regukrity  of  the  citationj   Baxter! 
observing  that  it  was  plainly  incompetent  to  repel  such  High  Court. 
objections  by  an  unsigned  interlocutor.  ^7m.^' 

Deas. — These  were  mere  minutes  of  procedure,  which  suspension. 
ultimately  resulted  in  a  conviction,  which  was  signed.  It 
was  not  necessary  that  the  narrative  of  what  took  place 
before  the  conviction  should  be  signed  at  each  stage  of 
the  proceedings.  The  conviction  was  right  and  regular, 
and  what  took  place  before  might  be  signed  by  the 
the  preses  as  an  authentication. 

Lord  Justice-Clerk. — I  do  not  think  so.  I  never 
heard  that  the  preses  could  so  sign.  Two  Justices  are 
required  for  every  stage  of  the  procedure.  I  do  not  say 
how  it  would  have  been  had  there  been  no  interlocutor 
repelling  these  preliminary  defences ;  but,  however  tech- 
nical the  objection  may  be,  I  think  the  statutory  require- 
ment must  be  complied  with,  and  that  the  signature  of  two 
justices  is  absolutely  necessary  to  the  validity  of  each 
deliverance  in  the  procedure.  It  is  of  no  consequence 
that  the  objection  is  a  technical  one.  Were  I  not  to 
sign  '  I.  P.  D.'  the  objection  would  be  technical,  but 
would  nevertheless  be  fatal. 

Deas. — The  question  then  came  to  be,  was  the  sus- 
pension competent  in  the  Justiciary  Court.  He  ought 
to  have  gone  to  the  Civil  Court,  according  to  decisions 
pronounced  in  both  Courts.  This  must  undoubtedly 
have  been  the  case  but  for  the  19th  section  of  the 
statute,  which  gave  original  jurisdiction  to  the  Court  of  ' 
Justiciary.  That,  however,  did  not  necessarily  compre- 
hend the  power  to  review  proceedings  of  an  inferior 
Court,  which  proceedings  were  in  themselves  essentially 
of  a  civil  nature.  There  was  no  doubt  that  a  suspension 
was  competent  in  the  Court  of  Session,  as  there  was 
nothing  to  deprive  that  Court  of  its  inherent  jurisdiction 
in  all  civil  causes ;  and  it  having  been  decided  that  in  all 
such  cases  the  subject-matter  of  the  proceedings  was 


210  CASES  BEPORK  THE  HIGH  COURT 

No-J6.    esseutially  of  »  civil  nature,  it  followed  that  the  Court  of 

Baxter,    Sessiou  had  exclusive  jurisdiction  in  cases  of  suspension. 

High  Court.     Farther,  by  the  20th  section  of  the  act,  an  appeal  viras 

1849.  ■  given  to  the  Quarter  Sessions  from  the  decision  of  the 

Suspension.  Justiccs,  and  the  party  seeking  to  set  aside  their  decision 

ought  to  have  gone  there  before  coming  to  any  superior 

tribunal  to  set  aside  the  conviction. 

The  Lord  Justice-Clerk. — ^^That  section  is  only  per- 
missive. No  doubt  you  are  thereby  enabled  to  go  to  the 
Quarter  Sessions,  but  there  is  nothing  therein  to  shew 
that  you  are  compelled  to  go  there  before  coming  here. 
The  19th  section  gives  us  jurisdiction  over  the  subject- 
matter,  and  I  take  it  that  we  have  thereby  full  power  of 
reviewing  the  decision  of  all  inferior  judicatories.  I  think 
the  non-signing  of  the  interlocutor  repelling  the  prelimi- 
nary pleas  fatal  to  the  whole  proceedings.  I  do  not  go 
on  the  absence  of  the  complainer,  because  he  voluntarily 
left  the  Court ;  but  I  proceed  on  the  ground  that  the 
proceedings  in  Courts  of  Justice  must  be  regularly 
authenticated,  which,  in  my  opinion,  has  not  been  done 
in  this  case. 

The  other  Judges  concurred,  and  the  note  of  suspen- 
sion was  accordingly  passed,  with  expenses. 

W  THEBSPOON  &  Mack — Ddncan  &  Millah— Agents. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  211 

WEST    CIRCUIT. 
GLASGOW. 

Present, 
Lords  Mackenzie  and  Moncbeiff.  lg4g. 

Her  Majesty's  Advocate — E.  F.  Maitland,  A.D. 

AGAINST 

Robert  Vance. —  W.  E.  Ayton. 

Gulp  ABIE  Homicide. — Circumstances  in  which  the  Jury,  under  the 
advice  of  the  presiding  Judge,  found  a  pannel  not  guilty  of  culpahle 
homicide  as  lihelled,  it  heing  charged  that  the  act,  whereby  death 
was  occasioned,  was  done  wickedly  and  feloniously. 

Robert  Vance,   calico    printer,   was  charged  with    N0.27. 
Culpable  Homicide.  Vance. 


In  so  FAR  AS,  on  the  9th  or  10th  day  of  September  1848,  or  on  one  March  23. 
or  other  of  the  days  of  that  month,  or  of  August  immediately  preced-      1849. 
ing,  or  of  October  immediately  following,  on  or  near  the  public  road    Culpable 
or  street  opposite  or  near  to  the  house  situated  in  or  near  Dovesland,  Homicide. 
at  or  near  Paisley,  in  the  Abbey  Parish  of  Paisley,  and  shire  of  Ren- 
frew, then  and  now  or  lately  occupied  by  Matthew  Sim,  weaver,  then 
and  now  or  lately  residing  there,  you  the  said  Robert  Vance,  did, 
wickedly  and  feloniously,  attack  and  assault  the  now  deceased  David 
Deans,  then  a  wheeler,  and  then  residing  in  or  near  High  Carriagehill, 
at  or  near  Paisley,  and  did,  with  your  fist,  strike  him  a  severe  blow 
on  or  about  the  head,  and  did  knock  him  down,  and  did  cause  his  head 
to  come  violently  in  contact  with  the  ground ;  by  all  which,  or  part 
thereof,  the  said  David  Deans  was  mortally  injured,  so  that,  after 
lingering  till  the  11th  day  of  September  1848,  he  then  died  in  conse- 
quence of  the  injuries  thus  received,  and  was  thereby  culpably  bereaved 
of  life  by  you  the  said  Robert  Vance. 

The  evidence  in  the  case  was  as  follows : — 

Matthew  Sim,  weaver. — I  live  at  Dovesland,  Paisley.  On  29th 
September,  my  brother  and  some  women  came  to  visit  me,  travelling 
in  a  gig,  and  put  up  their  horse.  The  gig  stood  in  front  of  my  house. 
I  know  the  prisoner.    He  was  of  the  party  in  my  house,  but  did  not 


212 


CASES  BEFORE  THE  HIGH  COURT 


No.  27. 
Robert 
Vanee. 

Glasgow. 

March  23. 

1849. 

Culpable 
Homicide. 


come  by  the  gig.  The  party  prepared  to  get  the  gig  yoked.  This 
was  rather  past  eleven.  An  alarm  was  given  that  some  person  had 
taken  it  away.  I  saw  that  it  was  gone.  I  followed  it,  seeing  it  at  a 
distance  going  away.  There  was  no  horse  in  it,  but  it  was  drawn  by 
a  man.  I  found  it  standing  on  the  street.  It  was  brought  back  to 
the  front  of  mj  house.  Vance  was  there.  He  went  into  the  gig  to 
protect  it,  and  said  they  that  would  meddle  with  it  would  meddle  with 
him.  Three  men,  strangers  to  me,  were  standing  on  the  opposite  side 
of  the  street.  They  came  across  and  asked  Vance  '  what  do  you  want 
'  there.'  They  had  talk  rather  in  the  way  of  quarrelling.  The  three 
had  not  been  at  my  party.  Vance  came  out  of  the  gig.  I  was  anxious 
to  secure  the  gig,  but  saw  Vance  and  one  of  the  three  commence  to 
fight.  I  paid  no  attention  to  them  after  that,  as  I  was  looking  for  a 
place  to  put  the  gig  in.  I  went  away  with  it.  When  I  came  back  I 
found  Vance  in  my  house.  He  was  much  agitated,  and  said  that  if  it 
was  true  he  had  struck  Deans  he  was  very  sorry  for  it,  as  he  was  the 
last  he  would  strike.  There  was  blood  on  Vance's  cheek.  I  went  out 
again  to  see  if  the  three  people  were  gone.  They  were  still  there.  I 
did  not  know  Deans  even  by  sight.  I  advised  the  men  to  go  away 
before  I  got  Vance  to  go  away  from  my  house. 

Oross-ewamined. — The  three  men  were  strangers  to  me.  When  the 
gig  was  brought  back  I  saw  a  man,  John  Cherry,  standing  on  the 
pavement.  I  thought  he  had  taken  the  gig  away.  I  have  known 
Vance  four  years.  For  any  thing  I  have  seen,  I  consider  him  a  very 
quiet  inoffensive  man. 

James  Deans. — I  am  son  of  the  late  David  Deans.  I  heard  a  noise 
On  Carriagehill  on  the  night  of  the  9  th  of  September.  I  went  to  see 
what  it  was.  I  know  Vance,  and  saw  him  there.  He  was  fighting. 
I  did  not  know  the  man  he  was  fighting  with.  For  all  I  saw  just  one 
man  only.  I  saw  my  father  there.  He  was  standing  behind  him.  He 
had  been  before  a  little  way  off.  He  said  when  he  went  forward, 
'  stick  in  Vance.'  I  thought  my  father  was  on  the  same  side  as  Vance. 
Vance  then  threw  back  his  hand  behind  him.  He  did  not  turn  round. 
His  hand  struck  my  father  and  he  fell  backwards.  He  was  not  able 
to  rise,  and  was  carried  into  a  house.  In  an  hour  he  was  taken  home 
and  put  to  bed.  I  never  saw  him  rise  afterwards.  This  was  on  a  Sa- 
turday and  he  died  on  the  Monday  morning  following.  I  never  heard 
'him  speak  after  the  injury.  Vance  and  my  father  were  acquainted — 
were  engaged  in  the  same  work,  and  good  friends.  I  saw  nothing  to 
shew  that  Vance  knew  that  it  was  my  father  who  was  behind  him. 

Cross-examined. — Vance  visited  my  father  on  the  Sabbath  day  be- 
tween the  injury  and  his  death. 

Matthew  Sim  junior. — I  am  the  son  of  Matthew  Sim,  a  previous 
witness.  I  remember  of  the  gig  being  taken  away  and  brought  back. 
Vance  was  there  after  it  was  brought  back.  Vance  stepped  into  the 
gig,  and  said  '  he  that  meddles  with  the  gig  meddles  with  me.'     I  went 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  213 

into  the  house.    I  heard  the  noise  of  a  battle,  about  ten  minutes  after    .  No.  27. 

Vance  went  into  the  gig.     I  went  out.    I  saw  Vance  and  another    E,ol>ert 

man  fighting.     I  knew  David  Deans.     I  saw  him  coming  running  up  — - . 

the  road  behind  Vance.     He  said,  '  man.  Bob,  pelt  into  him.'    Vance  ■^/i^^2S 

turned  and  saw  Deans  sparring.     He  then  struck  Deans  on  the  side  of      1849. 

the  head.     Deans  fell  flat  on  his  back.     He  did  not  rise.     Vance  said,    Culpable 

now  '  there's  one  of  your  men  down.'    Deans  was  carried  to  a  house  Homicide. 

close  by  Sim's.    Vance  then  went  into  our  house.     Vance  had  got 

spirits,  and  Deans  also.     I  saw  no  blood  on  Vance. 

Cross-examined. — I  think  Deans  was  sparring  at  the  man  fighting 

with  Vance.     There  was  one  fighting  with  Vance,  and  afterwards 

stripped,  keeping  the  ring  as  second  to  the  man  fighting  with  Vance. 

Vance's  fist  was  closed.    After  Deans  fell  he  lay  about  five  minutes. 

There  was  a  crowd.     This  was  about  eleven  at  night,  and  it  was  pitch 

dark.    The  crowd  were  trampling  round  where  Deans  lay.     I  did  not 

keep  my  eye  on  him  all  the  time  he  was  lying  there. 

£y  the  Court. — I  don't  know  if  Deans,  in  coming  forward,  meant 

to  be  second  to  Vance. 

Agnes  White  or  Garvan. — I  live  in  Paisley.  I  know  Sim's  house. 
I  saw  a  disturbance  there  on  the  9th  of  September,     t  saw  Vance 

there.  He  was  fighting  with  a  man  I  did  not  know.  I  saw  Deans 
come  up.     He  and  I  came  up  together..    He  said,  with  an  oath, 

'  Vance,  stick  in,  d n  him.'    We  were  behind  Vance.     Deans  was 

beside  me.  Vance  did  nothing  when  Deans  said  so,  except  that  he  gave 
a  kind  of  back  lick  with  the  back  of  his  hand.  He  hit  Deans.  I  was 
next  him,  but  crouched  or  I  should  have  got  it.  Deans  fell  and  the 
back  of  his  head  came  on  a  stone  like  the  shot  of  a  gun.  I  ran  away 
as  soon  as  he  fell,  but  soon  came  back  again.  I  looked  in  his  face  but 
he  made  no  motion.  He  was  the  worse  of  spirits,  and  I  thought  it 
was  that  that  made  him  stupid. 

Cross-examined. — When  Vance  threw  back  his  hand  the  crowd 
were  pressing  on  him,  both  before  and  behind,  so  much  so  that  he  could 
not  stir.  I  thought  in  throwing  back  his  hand  he  wished  to  make 
way. 

EXCULPATORY  EVIDENCE. 

Ann  M' Alpine. — I  knew  Deans.  I  remember  an  aflfray  when 
Deans  received  an  injury.  1  did  not  see  the  beginning  of  the  battle. 
When  I  first  saw  Deans  two  men  were  supporting  him.  One  said  to 
the  other,  '  they  are  killing  one  another,'  and  then  they  let  Deans  fall 
quite  carelessly.  He  fell  towards  the  side,  and  the  back  of  his  head 
struck  the  ground.  The  men  went  forward  and  let  him  lie.  I  did 
not  see  Vance  there  at  this  time. 

Ayton,  in  addressing  the  Jury,  on  behalf  of  the  pan- 


214  CASES  BEFORE  THE  HIGH  COURT 

No.  27.    nel,  contended  that  the  facts  proved  did  not  support  the 
v^nc^    charge  libelled.     Had  the  blow  been  originally  directed 
Glasgow,  against  an  opponent  the  case  might  have  been  different, 
^ui9^^'  but  as  it  at  present  stood,  it  was  clear  not  only  that 
Culpable  "Vance  had  not  intended  to  strike  any  person  seriously. 
Homicide.  ^^^  ^^lat  he  certainly  never  intended  to  strike  a  sup- 
porter.    The  accident  did  not,  in  truth,  occur  during  the 
fight,  it  was  in  preparation  for  "renewing  it,  by  driving 
away  persons  pressing  on  himself;  and  however  the  pan- 
nel  might  have  been  criminally  responsible  for  a  chanCe 
blow  struck  at  another  in  the  course  of  fighting  his  op- 
ponent, it  could  not  be  held  that  what  was  done  in  the 
way  of  clearing  the  ring  was  equally  culpable  as  if  the 
blow  had  been  given  by  mistake  in  the  course  of  the 
aflfray. 

Lord  Monceeiff,  after  conferring  with  Lord  Mac- 
kenzie, told  the  Jury,  that  although  it  was  evidently  a 
very  light  case  of  culpable  homicide,  and  although,  in  so 
far  as  the  misfortune  which  befell  Deans  was  concerned, 
it  was  clear  that  it  was  imdesigned  on  the  part  of  the 
pannel,  yet,  in  the  opinion  of  the  Court,  it  could  not  be 
said  that  the  pannel  was  free  fi-om  blame,  inasmuch  as 
he  was  engaged  in  an  illegal  act  at  the  time,  and  the 
blow  was  given  in  the  course  of  the  fight ;  but  as  the 
case  had  turned  out,  though  it  must  be  held  to  be 
culpable  homicide,  yet  it  could  not  be  said,  in  the  terms 
of  the  libel,  that  it  was  done  wickedly  and  feloniously. 

The  Jiu-y  unanimously  found  the  pannel  not  guifty  as 
libeUed. 

In  respect  of  which  verdict  of  Assize,  the  pannel  was 
assoilzed  simpliciter,  and  dismissed  from  the  bar. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  215 

WEST   CIRCUIT. 

STIRLING. 

Spring,  1849. 

April  17. 
Judges — The  Lord  Justice-Cierk  and  Lord  Wood.  1849. 

William  Dinwidie,  Appellant — E.  F.  Maitland, 

AGAINST 

William  Knox,  Respondent — Logan. 

Poor  Law  Settlement. — Held  that  a  mother  cannot  acquire  a 
settlement  for  her  child  by  a  former  husband,  by  means  of  a  joint 
industrial  settlement  with  a  second  husband. 

This  was  an  Appeal  against  a  sentence  of  the  Sheriff   ^q  ^s. 
of  Stirlingshire.     It  arose  in  the  following  manner : —  ^'^q^  "' 
The  appellant  raised  an  action  before  the  Sheriff  of  Stir-  '  stiiims 
ling  for  the  sum  of  £4:0:9,  as  the  amount  of  certain  ^?g]9^^" 


relief  advanced  by  him  as  inspector  of  the  poor  of  the  .  ^^j 
parish  of  Dumfries,  on  account  of  Elizabeth  Forsyth 
Wilson.  It  appeared  that  her  parents  had  obtained  a 
settlement  in  the  parish  of  Dumfries ;  and  that  in  1831, 
when  the  pauper,  in  respect  of  whom  the  dispute  arose, 
was  five  years  of  age,  her  father  died.  In  1832,  the 
widow  married  a  person  of  the  name  of  Innes,  who, 
in  the  following  year,  removed  with  his  family,  including 
Elizabeth  Wilson,  to  the  parish  of  St  Ninians,  and  re- 
sided there  till  1842,  when  they  all  returned  to  the 
parish  of  Dumfries.  Shortly  after  which,  and  without 
acquiring  any  settlement,  the  said  Robert  Innes  died.  In 
1846,  application  for  interim  relief,  on  behalf  as  well  of 
Elizabeth  Wilson  as  of  the  children  of  Innes  and  their 
mother,  was  made  to  the  appellant,  who  gave  the  usual 
statutory  notices  to  the  respon^Jent.  The  amount  ex- 
pended on  behalf  of  the  widow  and  children  of  Innes 
was  repaid  by  the  respondent,  who  refused  to  pay  the 
sum  advanced  for  the  child  of  the  former  marriage. 
The  Sheriff-substitute  decerned  in  favour  of  the  re- 


Appeal. 


216  CASES  BEFORE  THE  HIGH  COURT 

No.  28.    spondent;  and  on  appeal,  the  Sheriff  pronounced  the 
Knox,     following  interlocutor  : — 

Stirling. 

'*'m9.^'        '  Stirling,  21st  July  1848.— Having  advised  with  the  Sheriff,  who 
had  considered  the  appeal  for  the  pursuer ;  Finds,  that  the  pauper 
Elizabeth  Forsyth  Wilson  was  born  in  Dumfries  of  married  parents, 
and  that  her  father  had  then  acquired  a  settlement  in  the  parish  of 
Dumfries,  or  at  least  had  a  settlement  elsewhere  than  in  the  parish 
of  St  Ninians :  Finds,  that  while  the  pauper  was  a  pupil,  her  mother 
contracted  a  second  marriage  with  Robert  Innes ;  and  that  her  hus- 
band, accompanied  by  her  and  her  child,  the  said  Elizabeth  Forsyth 
Wilson,  removed  to  the  parish  of  St  Ninians,  where  he  acquired  a 
settlement ;  Finds,  that  the  present  action  is  for  repayment  of  cer- 
tain sums  granted  in  way  of  relief  to  the  said  Elizabeth  Forsyth 
Wilson,  by  the  inspector  of  the  poor  of  the  parish  of  Dumfries,  and  is 
'  brought  against  the  inspector  of  the  poor  of  the  parish  of  St  Ninians, 
'  on  the  assumed  liability  of  the  latter  parish  to  relieve  the  pauper, 
'  in  respect  that  a  woman  who  marries  a  second  time  acquires  the 

•  settlement  which  belongs  to  her  second  husband,  and  communicates 

•  the  settlement  so  acquired  to  a  child  of  the  first  marriage  incapable 

■  of  acquiring  a  settlement  in  its  own  right :  Finds,  that  a  widow, 

■  acquiring  a  new  settlement  by  marriage  with  a  second  husband,  does 

■  not  communicate  the  settlement  so  acquired  by  her  to  the  children 
'  of  her  former  marriage,  and  that  the  settlement  of  the  children  con- 
'  tinues  as  it  existed  before  the  second  marriage  of  their  mother; 

•  Dismisses  therefore  the  appeal,  affirms  the  interlocutor  appealed 
'  from,  and  decerns.  (Signed)  '  Job.  Hay.' 

'  Ifote. — The  case  of  the  Parish  of  Crieff  against  the  Parish  of 
'  Fowlis  Wester,  July  19.  1842,  has  fixed  that  a  widow  may,  by  in- 
'  dustrial  residence,  acquire  a  settlement  for  her  infant  children  ;  but 
'  if  she  marries  again,  the  question  arises,  whether  that  will  affect  the 
'  settlement  of  her  children  previously  acquired,  whether  through  her, 
'  under  her  industrial  residence  as  a  widow,  or  through  their  deceased 
'  father,  if  his  settlement  still  continue  to  be  his  children's  at  the  time 
'  of  their  mother's  second  marriage.  The  case  of  Crieff  does  not,  it  is 
'  thought,  solve  the  last  at  least  of  these  cases,  which  is  the  one  which 
'  has  now  occurred.  For,  in  the  present  instance,  the  widow  married 
'  a  year  after  her  first  husband's  death,  and,  in  the  following  year, 
'  removed  with  her  second  husband  from  the  parish  of  the  settlement 
'  of  her  first.  It  is  conceived  to  be  clear,  that  the  mother's  residence 
'  in  St  Ninians  could  not  directly  acquire  a  settlement  for  the  chil- 
'  dren  of  her  first  marriage,  because  such  residence  could  not  acquire 
'  a  settlement  for  herself,  it  being  her  husband's  residence  which 
'  would  give  her  a  settlement  in  that  parish.     If  then  the  mother 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  217 

'  cannot  acquire  a  settlement  for  a  child  by  a  former  marriage  when  she     No.  28. 
'  is  not  acquiring  a  settlement  for  herself,  except  derivatively  through  '^™!"'^'^  '"■ 

'  her  husband,  it  would  seem  to  follow,  that  her  children  must  retain  — r-. 

'  the  settlement  they  had  acquired  previous  to  their  mother's  second    April  17. 
'  marriage.     It  is  difficult  to  understand  on  what  principle  a  married      1 849. 
'  woman  can  communicate  her  second  husband's  settlement  to  her     Appeal. 
'  children  of  a  former  marriage.  (Initialed)  J.  H. 

E.  F.  Maitland  for  the  Appellant. — This  appeal  was 
brought  to  decide  the  question,  whether  a  married  wo- 
man, haying  obtained  a  settlement  by  means  of  industrial 
residence,  could  communicate  a  right  of  settlement  to  a 
daughter  by  a  former  marriage.  The  case  of  the  heri- 
tors of  Crieff  against  Fowlis  Wester  had  decided  that  a 
widow  could  do  so  to  her  children,  and  it  followed,  that 
the  same  result  would  ensue  in  respect  of  children  of  a 
former  marriage^  if  the  widow  married  again.  Assuming 
that  the  mother  had  a  proper  settlement  at  St  Ninians, 
it  followed  that  the  parish  in  which  she  was  settled,  was 
bound  to  Mfil  the  obligation  which  previously  fell  upon 
her  to  support  her  child.  This  obligation  was  not  in 
any  way  affected  by  means  of  the  subsequent  marriage. 
Farther,  the  mother  took  part  in  the  industrial  occupa- 
tion ;  and  the  parish  of  St  Ninians  which  had  the  bene- 
fit of  that,  could  not  repudiate  any  obligation  ensuing 
therefrom,  especially  as  this  child  was  part  of  the  family 
of  the  stepfather. 

Logan  was  not  called  upon  to  reply. 

LoED  Wood. — In  this  case  there  is  no  room  for  doubt. 
Where  the  parties  were  settled  before  1832,  does  not 
seem  clear,  but  it  certainly  was  not  in  the  parish  of  St 
Ninians.  In  the  year  1831,  Wilson  the  former  husband 
died,  leaving  a  widow  and  child,  both  of  whom  had  then 
an  undoubted  claim  of  relief  against  the  parish  in  which 
he  was  settled.  In  1832,  having  married  again,  the 
family,  including  the  child,  come  to  the  parish  of  St 
Ninians,  where  they  lived  till  1842  ;  and  in  that  period 
acquired  a  settlement  by  means  of  an  industrial  residence. 
It  has  been  settled,  since  the  case  of  Crieff,  that  a  widow 


218  CASES  BEFORE  THE  HIGH  COURT 

jj?[°;^fg,j,  may,  by  industrial  residence,  acquire  a  settlement  for 
^"°^-     her  child,  just  as  a  father  may ;  but  in  the  case  of  a  se- 

I'riiT?  ^'^^^  marriage,  it  seems  altogether  different.  A  settle- 
'849.  ment  acquired  by  means  of  industrial  residence,  is  alto- 
Appeai.  gether  derivative  to  her.  In  truth,  she  seems  to  fall  into 
it,  rather  than  to  acquire  it.  There  is  no  ground,  there- 
fore, for  the  child  to  claim  relief  against  the  parish  in 
which  her  stepfather  has  resided.  Such  residence  would 
not  take  away  the  child's  right  of  relief  against  the 
parish  of  the  father's  settlement,  and  I  accordingly  move 
that  the  sentence  of  the  Sheriff  be  affirmed. 

The  Lord  Justice-Cleek. — I  entirely  concur.  I  as- 
sume that  at  the  death  of  Wilson  he  had  a  settlement 
in  Dumfries,  against  which  parish  his  child  also  had  a 
right.  It  is  quite  clear,  that  no  act  of  the  mother  could 
destroy  this  right  of  the  child,  unless  she  was  able  to  ac- 
quire for  it  another  settlement.  The  Crieff  case  was  al- 
together different.  A  widow  stands  in  some  respects  in 
the  position  of  a  father,  but  here  the  mother  married 
again.  By  that  act  her  settlement  was  changed  at 
once.  Suppose  that  the  child  became  chargeable  the 
day  after  the  marriage  of  her  mother,  could  it  be  said 
that  she  had  thereby  lost  her  right  against  the  parish  of 
her  father?  or  could  it  be  pretended  that  she  had,  by  her 
mother's  marriage,  obtained  a  right  against  the  parish  to 
which  her  father-in-law  belonged  ?  The  argument,  that 
the  parish  of  St  Ninians  had  gained  by  the  industry  of 
the  wife,  was  altogether  futile,  when  pleaded  as  a  ground 
on  which  a  settlement  therein  could  be  obtained  for  a 
child  by  a  former  marriage,  as  the  law  could  only  regard 
the  husband  in  such  a  case. 

The  Appeal  was  refused,  with  expenses. 


April  26. 
1849. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  219 

GLASGOW. 

Jvtdge — The  Lord  Justice-Clerk, 
P.  E.  Henderson,  Appellant. — Monro. 

AGAINST 

M'^VuLAY  &  Co.,  Respondents. — D.  Mackenzie. 

Appeal. — Objection  to  the  competency  of  an  appeal  sustained,  iu 
respect  it  was  not  lodged  within  ten  days  after  judgment,  disposing  of 
the  merits  and  matter  of  expenses,  although  there  was  a  subsequent 
interlocutor  in  the  case. 

This  action  was  instituted  by  the  defenders  M'Aulay  &  HOTderson 
Co.,  provision  merchants,  Glasgow,  against  Thomas  and  "•  ^'g"''*y 

Peter   E.   Henderson    for   payment   of  an   account   ofTn 

£12 :  12 :  8,  incurred  to  the  pursuers.    Decree  in  absence  April  26. 
was   obtained   against   both   defenders,    and   extracted.- 

1  ft  Appeal. 

Thereafter,  on  the  petition  of  one  of  the  defenders, 
P.  E.  Henderson,  he  was  reponed  on  consignation  of  the 
previous  expenses,  and  a  litigation  ensued  between  the 
pursuers  and  P.  E.  Henderson,  in  regard  to  the  liability 
of  the  latter.  In  the  meantime,  the  other  defender, 
Thomas  Henderson,  was  charged  under  the  decree  ob- 
tained against  him,  and  the  principal  sum  recovered  from 
him.  On  advising  the  proofs,  the  Sheriff-substitute 
(Mr  Skene)  pronounced  the  following  interlocutor  :-^ 

'  Glasffoio,  %th  November  1848. — Having  resumed  consideration  of 
'  this  process,  in  respect,  while  the  pursuers'  proof  sufficiently  instructs 
'  the  defender  Peter  E.  Henderson's  liability  for  the  whole  sum  sued 
'  for,  it  appears  from  the  close  of  the  said  proof  that  the  principal  sum 
'  sued  for  has  been  recovered  from  the  other  defender ;  finds  the  said 
'  Peter  E.  Henderson  liable  to  the  pursuers  in  payment  of  interest 
'  thereon  merely,  and  finds  him  also  liable  to  the  pursuers  in  expenses, 
'  of  which  allows  an  account  to  be  lodged,  and  remits  the  same  to  the 
*  auditor  to  tax  and  to  report,  and  decerns. 

'  George  Skene.' 


220  CASES  BEFORE  THE  HIGH  COURT 

No.  32.        The  defender  reclaimed,  and  thereafter  appealed  to  the 

Henderson  ,      ,  ,i  •    j.      e 

V.  M'Auiay  Sheriff,  who  adhered,  with  the  variation  on  the  point  or 
-^  °'  expenses,  that  these  were  to  be  allowed  subject  to  large 
Aprif  26.'  modification.  The  expenses  were  taxed  and  modified  on 
_J^^!_  the  14th  of  February  1849,  by  the  Sheriff-substitute,  to 
Appeal,  j^g  ^j^.^  interlocutor  was  acquiesced  in,  and  an  extract 
of  the  decree  ordered.  When  the  Sheriff-clerk  was 
making  out  the  extract,  it  was  found  that  the  sum  con- 
signed by  the  defender  when  he  was  reponed  had  never 
been  uplifted,  and  a  motion  was  lodged  by  the  pursuers 
for  authority  to  receive  this  sum  in  payment  pro  tanio 
of  the  modiiied  expenses,  which  was  granted  on  the  21st 
February  1849. 

An  appeal  was  taken  against  the  judgment  at  the 
next  Court  of  Justiciary,  and  the  appeal  was  lodged  and 
intimated  on  the  8d  of  March,  ten  days  after  the  last 
interlocutor  of  21st  February  1849. 

Monro,  for  the  appellant,  contended,  that  the  final 
interlocutor  in  the  action  was  that  of  21st  February,  and 
that  the  appeal  having  been  lodged  within  ten  days  after 
that  interlocutor  was  pronounced  it  was  regular  and  com- 
petent. 

Mackenzie,  for  the  respondent,  objected  to  the  com- 
petency of  the  appeal,  in  respect  that  it  was  not  lodged 
within  ten  days  of  the  final  judgment  or  decree  in  the 
cause.  By  the  act  20th  Geo.  II.  c.  43,  §  34,  an  appeal 
to  the  Circuit  Court  must  be  taken  either  at  the  time  of 
pronouncing  '  final  decree  and  sentence  or  judgment,' 
or  within  ten  days  thereafter,  by  lodging  the  appeal  in 
the  hands  of  the  clerk  of  Court.  So  also,  by  the  Act  of 
Sederunt  of  12th  July  1839,  appeals  are  declared  '  com- 
'  petent  only  after  a  final  judgment  has  been  pronounced, 
'  and  the  matter  of  expenses  has  been  disposed  of;'  and 
the  appeal  must  be  taken  either  at  the  time  of  pronoun- 
cing such  final  judgment,  or  within  ten  days  thereafter. 
Now,  hero  the  merits  of  the  action  wore  disposed  of  by 
the  interlocutor  of  the  Sheriff-depute  adlicring  to  that 
of  the  Shcriff-substituto  of  8th  November  1848,  with 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  221 

the  variation,  that  he  held  the  pursuers  entitled  to  ex-    No.  32. 

.  ,        n       1   Henderson 

penses,  but  subject  to  modmcation.     That  was  the  nnal  ^i.M'Auiay. 

judgment  or  decree  on  the  merits,  and  the  '  matter  of , 

expenses  was  disposed  of,  and  decree  given  therefor  on  ApSfse'. 


the  14th  February  1849.  The  appeal  was  not  lodged  , 
with  the  clerk  of  Court  within  ten  days  of  this  decree, 
and  therefore  was  incompetent,  both  under  the  act  of 
Parliament  and  act  of  Sederunt.  The  interlocutor  of 
the  24th  February  merely  authorised  the  pursuers  to 
uplift  the  consigned  sum,  and  to  apply  them  towards 
payment  of  the  amount  of  the  modified  expenses,  and 
was  neither  the  final  judgment  or  decree  on  the  merits, 
nor  the  judgment  disposing  of  the  matter  of  expenses. 

Held  by  the  Lord  Justice-Clerk — That,  as  by  the 
act  of  Parliament  and  act  of  Sederunt,  the  appeal  must 
be  taken  within  ten  days  of  the  final  judgment  in  the 
cause,  and  of  the  decree  disposing  of  the  matter  of  ex- 
penses ;  and  as  the  decree  here  disposing  of  the  expenses 
was  that  of  the  14th  February  1849,  approving  of  the 
auditor's  report,  modifying  the  expenses  to  £6,  and  de- 
cerning therefor,  the  whole  merits  having  been  then  dis- 
posed of,  and  as  the  appeal  was  not  taken  within  ten 
days  of  such  interlocutor,  it  was  incompetent.  The  in- 
terlocutor of  the  21st  February  1849  was  a  mere  inter- 
locutor following  on  the  previous  final  judgment,  and 
caused  by  the  defender  having  incurred  an  award  by 
being  reponed  against  a  decree  in  absence. 

The  appeal  was  dismissed. 

Monro,  for  the  appellant,  moved  that  his  Lordship 
should  modify  the  expenses. 

Lord  Justice-Clerk. — I  do  not  in  general  modify 
the  expenses  in  an  appeal,  but  allow  the  whole  expenses 
which  have  been  incurred  in  consequence  of  the  appeal, 
subject  to  proper  taxation.  Some  cases  may  occur  in 
which  one  can  safely  modify  expenses.  But  the  principle 
on  which  I  act  is,  that  the  successful  party  in  the  appeal, 
whether  appellant  or  respondent,  should  not  lose  in  point 
of  expenses  when  he  gains  the  appeal. 


J  849. 
Appeal. 


222  CASES  BEFORE  THE  HIGH  COURT 

Marshall,  Appellant. — Monro. 

AGAINST 

Turner,  Eespondent. — Logan. 

Appeal— Caution.— Held,  1.  That  there  is  no  statutory  provision  re- 
quiring a  certificate  that  caution  has,  been  found  in  an  appeal  to  the 
Circuit  Court.  2.  Circumstances  in  which,  on  an  allegation  that 
caution  had  not  been  found,  the  Court  offered  time  to  allow  the 
necessaiy  evidence  to  be  produced. 

No.  33.        This  was  an  appeal  from  the  Sheriff  of  Lanarkshire. 

'  Turner.  '  On  the  appeal  being  called,  it  was  objected  by  the  re- 

Giasgow.   spondent,  that  there  did  not  appear  to  have  been  any 

1849.  '  caution  found,  as  required  by  the  statute.     It  was  usual 

Appeal,    to  certify  on  the  back  of  the  appeal  that  caution  had 

been    duly   given;   but   not  only   was    this    certificate 

wanting  in  this  case,  but  there  was  no  certificate  of  any 

kind  to  shew  that  caution  had  been  found. 

Answered,  for  the  appellant,  that  caution  had  in  fact 
been  found,  and  that  the  appellant's  agent  was  his 
cautioner. 

The  Lord  Justice-Cleek. — ^The  statute  does  not  con- 
tain any  directions  as  to  the  production  of  a  certificate 
in  any  form,  it  only  directs  caution  to  be  found,  which  it 
is  alleged  has  been  done  in  the  present  case.  If,  there- 
fore, the  respondent  disputes  this,  the  case  must  be 
delayed,  in  order  to  afford  the  appellant  time  to  produce 
the  necessary  evidence  of  the  facts.  Prima  facie,  the 
objection  is  not  good,  as  it  is  very  unlikely  that  the 
Sheriff-clerk  would  have  transmitted  the  appeal,  if 
caution  had  not  been  duly  given. 

Logan  hereupon  departed  from  the  objection,  and  the 
case  proceeded. 


AND  CIKCUIT  COURTS  OP  JUSTICIARY.  223 

SOUTH  CIRCUIT. 

Spring,  1849. 

DUMFRIES. 

Present,  ^P^^,'"- 

Lonns  Moncrieff  and  Cockburn. 
Jane  M'Kichbn  ob,  Chakteks — Cleghorn 

AGAINST 

Helen  Mnm — Welsh. 

Appeal — Innkeeper — Lien. — Held  that  an  Innkeeper  had  a  right  to 
detain  the  wearing  apparel  of  a  guest  who  neglected  to  pay  his  bill 
when  demanded,  even  though  payment  was  refused  on  the  ground  that 
the  charges  therein  exceeded  what  had  been  agreed  on. 

This  was  an  appeal  from  the  Stewart  of  Kirkcud-    No.  29. 
bright,  against  a  decision  refusing  to  recognize  a  lien   ».  Muir. 
claimed  by  the  appellant,  under  the  following  circum-  Dumfries, 
stances  : — ^The  respondent's  husband,  who  is  a  dancing-     \u9. 
master,  having  periodically  given  lessons  in  the  village    Appeal, 
where  the  appellant  lives  and  keeps  an  inn,  was  in  the 
habit  of  staying  at  her  house,  and  had  incurred  a  bill  of 
a  few  shillings,  when  he  determined  to  give  a  ball  to  his 
scholars,  and  for  that  purpose  sent  for  his  wife  (the  re- 
spondent in  this  appeal),  together  with  his  daughter,  to 
assist  at  the  entertainment.     They  accordingly  came, 
bringing  with  them  no  other  clothes  than  those  they 
were  wearing,  save  their  ball  dresses,  and  took  up  their 
abode  at  the  appellant's  house,  where  they  partook  of 
refreshments,  and  were  furnished  with  a  room  in  which 
they  dressed  for  the  ball,  and  left  their  ordinary  clothes 
lying.     On  their  return  from  the  ball,  and  before  leav- 
ing, the  husband  of  the  respondent  called  for  the  bill, 
but  refused  to  pay  the  whole  sum,  as  he  alleged  that  cer- 
tain items  were  charged  higher  than  had  been  agreed 


224  CASES  BEFORE  THE  HIGH  COURT 

No.  29.    on :  whereupon  the  appellant  detained  the  ordinary  wear- 
■a.  Muir.    ing  apparel  of  the  whole  party,  leaving  them  to  go  nome, 
Dumfries,  a  distance  of  eight  or  nine  miles,  in  their  ball  dresses. 
^\u9^'  The  respondent  thereupon  presented  a  petition  to  the 
AppeaL    Stewart  of  Kirkcudbright,  praying  for  restoration  of  her 
wearing  apparel,  to  which  answers  were  given  in,  and  a 
proof  afterwards  allowed  by  the  Stewart-substitute,  as  to 
whether  the  respondent  had  any  other  ordinary  wearing 
apparel  than  those  detained  by  the  appellant  on  the  oc- 
casion in  question.     On  advising  the  whole  case,  the 
Stewart-substitute  ordained  the  clothes  to  be  delivered 
up,  founding  his  judgment  on  the  fact  that  the  respon- 
dent had  no  other  clothes  in  which  to  go  home. 

Against  this  judgment  an  appeal  was  taken  to  the 
Circuit  Court. 

Cleghoen,  for  the  Appellant,  pleaded — It  was  un- 
doubted law  that  an  innkeeper  had  a  right  of  retention 
over  the  luggage  of  his  guests,  in  security  of  the  debts 
incurred  by  them  in  that  character,  and  accordingly,  if 
his  bill  was  not  settled,  had  a  right  to  detain  it.  This 
right  was  universal,  extending  to  all  possible  luggage^ 
and  any  inconvenience  alleged  to  arise  to  the  respon- 
dent in  this  case,  only  shewed  the  efficacy  of  the  right  of 
retention  in  forcing  a  settlement.  The  proof  allowed  by 
the  Stewart-substitute  was  therefore  quite  irrelevant, 
and  his  judgment  ill  founded. 

Welsh,  for  the  Respondent,  answered — The  right 
claimed  by  the  appellant  amounted  substantially  to  a 
right  to  incarcerate  within  her  inn  such  customers  as  re- 
fused to  pay  any  bill,  however  exorbitant ;  for,  to  leave 
persons  no  alternative  but  that  of  being  either  detained, 
or  walking  home  several  miles  in  a  rainy  night  in  thin 
shoes  and  light  muslin  dresses,  and  without  bonnets,  was. 
equivalent  to  a  power  of  incarceration.  But  here  there 
had  not  even  been  a  refusal  to  pay  the  bill,  but  objec- 
tion was  made  to  certain  charges,  as  being  contrary  to 
express  agreement. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  225 

The  respondent  was  entitled  to  prevail  on  another  ^°-.2^- 
ground,  for  the  debt  incurred  was  a  debt  of  the  hus-   «.  Muir. 
band's,  and  therefore  no  separate  property  of  the  wife,  Dumfries, 
especially  if  that  property  was  of  a  paraphernal  character,     ]849.  " 
as  in  the  present  case,  could  be  retained  in  security    Appeal. 
for  it. 

Lord  Cockburn. — We  cannot  hear  you  upon  that 
point.  There  is  not  a  word  about  it  in  the  judgment  of 
the  Inferior  Court. 

The  Court  were  of  opinion  that  the  innkeeper's  right 
of  retention  extended  to  articles  of  dress  retained  by 
her  from  the  respondent.  They  therefore  altered  the 
judgment  of  the  Stewart-substitute. 


NORTH   CIRCUIT. 

ABERDEEN. 

Present, 
Lords  Mackenzie  and  Medwyn.  April  24. 

1849. 

Heb  Majesty's  Advocate — £>eas  A.D. 

AGAINST 

Christian  Duncan — Burnett. 

Indictment — Eelevancy — Theft  by  HousEBREAKiNa.— Circum- 
stances which  were  held  sufficient  to  support  a  charge  of  theft  by 
housebreaking,  although  the  pannel  was  not  charged  with  using  any 
other  violence  than  opening  the  attic  door  by  means  of  false  keys. 

Christian  Duncan  was  charged  with  Theft,  by  means    No.  30. 

Christian 

of  Housebreaking :  Duncau. 

Aberdeen. 

In  so  far  as,  on  the  14th  day  of  October  1848,  or  on  one  or  other    April  24. 

.          .                     .                 1849. 
of  the  days  of  that  month,  or  of  September  immediately  preceding,  or 

November  immediately  following,  you  the  said  Christian  Duncan  did.  House- 

wickedly  and  feloniously,  break  into  and  enter  an   attic-room   of  a  breaking. 

dwelling-house  situated  in  or  near  Long  Acre,  in  or  near  Aberdeen, 


226  CASES  BEFORE  THE  HIGH  COURT 

No.  30.  the  said  attic -room  being  then  and  now  or  lately  possessed  or  occupied 
*Duncan"  ^^  James  Reid,  a  baker,  now  or  lately  residing  or  lodging  with  Wil- 
liam Largue,  a  spirit-dealer,  now  or  lately  residing  in  or  near  Hutcheon 


'A'prU*24.'  Street,  in  or  near  Aberdeen,  by  opening  the  lockfast  door  of  the  said 
1849.      attic-room  by  means  of  a  false  key  or  picklock  ;  and  having  thus,  or 
Theft  by      in  some  other  way  or  by  some  means  to  the  prosecutor  unknown,  ob- 
House-        tained  entrance  into  the  said  attic  -room,  you  the  said  Christian  Duncan 
breaking.     ^.^^  ^^^^  ^^^  ^^^^^^  wickedly  and  feloniously,  steal  and  theftuously 
away  take,  a  book  titled  '  The  Self- Interpreting  Bible,  with  an  Evan- 
'  gelical  Commentary  by  the  late  Rev.  John  Brown,  Minister  of  the 
'  Gospel  at  Haddington,'  or  bearing  some  similar  title,  the  property, 
or  in  the  lawful  possession,  of  the  said  William  Largue,  or  in  the  law- 
ful possession  of  the  said  James  Eeid ;  as  also,  two  hearth-rugs,  two 
crystal  cruets,  and  a  piece  of  wax-cloth,  the  property,  or  in  the  lawful 
possession,  of  the  said  James  Reid. 

Burnett  objected  to  the  relevancy  of  the  libel,  in  so 
far  as  it  charged  housebreaking.  It  was  necessary  to 
constitute  the  aggravation  of  housebreaking,  that  the 
external  security  of  the  dwelling  should  be  violated, 
whilst  the  charge  preferred  against  the  pannel  was  not 
only  destitute  of  any  allegation  to  that  effect,  but  plainly 
indicated  that  it  was  an  inner  door  which  she  was  accused 
of  having  opened,  on  the  security  of  which  the  inmates 
could  not  be  taken  to  have  relied. 

Deas. — It  was  set  forth  in  the  indictment,  that  Reid, 
from  whom  the  articles  mentioned  were  taken,  was  a 
lodger.  The  attic  door  was  therefore  to  him  an  outer 
door,  as  it  formed  the  entrance  to  his  habitation,  and 
constituted  its  only  safeguard. 

The  Court  sustained  the  relevancy  of  the  indictment, 
Lord  Mackenzie  remarking,  that  he  had  known  a  case 
where  the  Court  sustained  an  aggravation  of  housebreak- 
ing, the  party  having  broken  out  of  a  house  which  he 
entered  for  the  purpose  of  committing  a  theft. 

The  pannel  afterwards  pled  guilty  to  the  charge  of 
theft,  without  the  aggravation  of  housebreaking. 

In  respect  of  which  judicial  confession,  she  was  sen- 
tenced to  be  transported  for  the  period  of  seven  years. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  227 

Her  Majesty's  Advocate — Deas  A.D. 

AGAINST 

Ann  Ddthie — Burnett. 

Indictment — Relevancy — Wanton  and  Malicious  Mischief. — 
Circumstances  in  which  the  Crown,  on  the  recommendation  of  the 
Court,  withdrew  a  charge  of  "Wanton  and  Malicious  Mischief,  it 
pearing  that  in  fact  the  prisoner's  attempt  had  been  abortive. 

No.  3K 

Ann  Duthie  was  charged  with  Malicious  Mischief;  "'^"w^"' 
as  also  Wanton  Mischief:  Aberdeen. 

April  24. 
1849. 
In  so  far  as,  (1.),  on  the  night  of  the  8th,  or  morning  of  the  9th,  — — — — - 

day  of  October  1848,  or  on  one  or  other  of  the  days  of  that  month,  or  Malicious 
of  September  immediately  preceding,  or  of  November  immediately  fol-  Mischief, 
lowing,  at  or  near  the  house  situated  in  or  near  King  Street,  in  or 
near  Aberdeen,  then  and  now  or  lately  occupied  by  John  Duncan,  then 
and  now  or  lately  residing  there,  you  the  ^aid  Ann  Duthie  did,  wick- 
edly, wantonly,  and  mischievously,  throw  two  or  more  stones  or  other 
hard  missiles  at  one  or  more  of  the  windows  in  the  said  house,  with 
the  intent  and  for  the  purpose  of  breaking  the  glass  of  the  said  win- 
dows, or  of  one  or  more  of  them,  the  property,  or  in  the  lawful  pos- 
session, of  the  said  John  Duncan  ;  and  which  stones,  or  one  or  more  of 
them,  struck  forcibly  against  a  wire  frame,  which,  unknown  to  you 
the  said  Ann  Duthie,  had  been  recently  before  put  up  on  the  outside 
of  the  glass  of  the  said  windows,  or  of  one  or  more  of  them,  for  their 
or  its  protection,  and  but  for  which  protection  the  glass  of  the  said 
windows,  or  of  one  or  more  of  them,  would  have  been  broken  by  the 
stones  thrown  by  you  as  aforesaid,  or  by  one  or  more  of  them  ;  and 
this  yon  the  said  Ann  Duthie  did,  while  the  said  windows  were,  and 
were  well  known  to  you  to  be,  watched  by  and  under  the  charge  of  the 
police  authorities  of  Aberdeen,  for  the  express  purpose  of  preventing 
you  from  breaking  the  said  windows,  as  you  had.  previously  done,  or 
from  throwing  stones  or  other  hard  missiles  thereat,  which  you  never- 
theless did  as  aforesaid,  in  open  defiance  of  the  law  and  of  the  said 
authorities  :  Likeas  (2.),  on  the  9th  day  of  October  1848,  or  on  one 
or  other  of  the  days  of  that  mouth,  or  of  September  immediately  pre- 
ceding, or  of  November  immediately  following,  at  or  near  the  house  or 
premises  situated  in  or  near  Huxter  Row,  in  or  near  Aberdeen,  then 
and  now  or  lately  occupied  as  the  town-house  of  Aberdeen,  you  the 
said  Ann  Duthie  did,  with  your  hand  or  hands,  or  by  some  other 
means  to  the  prosecutor  unknown,  wickedly,  wantonly,  maliciously, 
and  mischievously,  break  or  destroy  six,  or  thereby,  panes  of  glass  of 


228  CASES  BEFORE  THE  HIGH  COURT 


No.  3t.     one  of  the  windows  of  {he  said  last-mentioned  house  or  premises,  the 
\.iin  Dv 
thie. 


Ann  Du-   property,  or  in  the  lawful  possession,  of  the  Burgh  of  Aberdeen,  or  of 


the  Magistrates  and  Town  Council  of  Aberdeen,  for  behoof  of  or  as  re- 


April  24.'  presenting  the  community  of  Aberdeen. 
1849.  ' 


Wantonand  BuRNETT  objected  to  the  relevancj  of  the  first  charge 
Mischief,  contained  in  the  indictment.  It  plainly  appeared  that 
the  attempts  made  by  the  pannel  had  proved  abortive, 
and  consequently,  could  not  found  a  relevant  minor  to  a 
charge  of  malicious  or  wanton  mischief,  when  no  mis- 
chief in  fact  ensued.  It  was  immaterial  by  what  means, 
or  by  whose  precautions,  her  attempts  had  been  defeated. 
Deas. — But  for  the  strong  wire  frame  which  protected 
the  window,  the  attempt  would  have  succeeded,  and  the 
law  would  regard  her  repeated  attempts,  if  defeated,  as 
equivalent  to  the  completed  offence. 

The  Court  having  conferred.  Lord  Mackenzie  recom- 
mended that  the  first  charge  should  be  withdrawn.  His 
Lordship  added,  that  in  so  doing  the  Court  did  not  in- 
tend to  give  any  opinion  on  the  validity  of  the  objection, 
much  less  to  determine  the  point. 

The  pannel  pleaded  guilty  to  the  second  charge  as 
libelled. 

In  respect  of  which  judicial  confession,  she  was  sen- 
tenced to  be  imprisoned  for  one  year.  Lord  Mackenzie 
remarking,  that,  had  there  been  any  precedent  to  that 
effect,  he  would  have  passed  a  sentence  of  transportation, 
in  consequence  of  the  number  of  previous  convictions, 
nine  in  number,  which  had  been  proved  against  her. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  229 

PERTH. 

Present, 
LonDs  Mackenzie  and  Medwyn.  May  2. 

1849. 

Her  Majesty's  Advocate — Deas,  A.D. 

AGAINST 

John  Elder  Munnocn. —  W.  G.  Dickson. 

Indictment — Relevancy. — Objection  to  the  indictment,   that  the 
minor  did  not  answer  to  the  major,  repelled. 

John  Elder  Muedoch  was  charged  with  Wilfully,  No.  34. 

Unlawfully,  and  Maliciously,  or  the  Wilfully,  Unlawfully,  Murdoch. 

-and  Recklessly,  placing  or  rolling,  and  leaving  a  stone  Perth. 

upon  or  between  or  near  the  rails  of  a  line  of  railway,  1349. 


used  for  conveying  passengers  and  goods  by  locomotive  Wiifui 
trains  or  caVriages,  in  a  manner  calculated  and  intended,  ^™*8e- 
or  in  a  manner  calculated  to  obstruct  such  trains  or 
carriages,  and  to  endanger  the  lives  or  safety  of  the 
passengers  and  other  persons  travelling  thereby ;  As  also, 
with  contravention  of  the  statute  3d  and  4th  Vict.  c.  97 
sect.  15. 

In  so  par  as,  on  the  4th  day  of  March  1849,  or  on  one  or  other  of 
the  days  of  that  month,  or  of  February  immediately  preceding,  or  of 
the  bypast  part  of  April  immediately  following,  you  the  said  John 
Elder  Murdoch  did,  wilfully,  unlawfully,  and  maliciously,  or  wilfully, 
unlawfully,  and  recklessly,  place  or  roll  and  leave  a  large  stone,  weigh- 
ing six  hundredweight,  or  thereby,  upon  or  between  or  near  the  rails 
of  the  line  of  the  railway,  then  and  now  or  lately  called  the  Edinburgh 
and  Northern  Railway,  then  and  now  or  lately  the  property,  or  in  the 
lawful  possession,  of  the  company  incorporated  by  Act  of  Parliament, 
under  the  name  or  title  of  the  Edinburgh  and  Northern  Railway 
Company,  or  under  some  similar  or  other  name  or  title,  and  at  or  near 
that  part  of  the  said  line  of  railway,  situated,  226  yards,  or  thereby,  to 
the  south-eastward  of  a  bridge  which  crosses  the  said  line  of  railway  at 
or  near  the  farm  of  Braeside,  in  or  near  the  parish  of  Abdie,  and 
county  of  Fife,  then  and  now  or  lately  occupied  by  Andrew  Dingwall, 
a  farmer,  then  and  now  or  lately  residing  there,  and  which  bridge  is 
situated  1640  yards,  or  thereby,  to  the  north-westward  of  the  Oollessio 


230  CASES  BEFORE  THE  HIGH  COURT 

T  ¥°-^^-     Station  of  the  said  railway  :  and  which  line  of  railway  was  then  used, 

John  Elder        ,  „  ,  •'  ,     „  .  j 

Murdoch,   and  was  well  known  to  you  to  he  used,  for  conveying  passengers  and 

Pgj^jj      goods  hy  locomotive  trains  or  carriages ;  and  this  you  did,  in  a  manner 

May  2.     calculated,  and  by  you  intended,  or  in  a  manner  calculated  to  obstrnct 

'^*^'      the  said  trains  or  carriages,  and  to  endanger  the  lives  or  safety  of  the 


j^''f">  passengers  and  other  persons  travelling  thereby ;  and  more  particularly 
in  a  manner  calculated,  and  by  you  intended,  or  in  a  manner  calculated 
to  obstruct  a  locomotive  train  or  set  of  carriages  driven  by  locomotive 
power,  and  carrying  passengers,  which  you  expected  or  had  reason  to 
believe  would  shortly  thereafter  pass  from  Perth,  or  the  direction  of 
Perth,  to  or  towards  Burntisland,  along  that  part  of  the  said  line  of 
railway  upon  or  near  to  which  you  had  placed  or  rolled  and  left  the 
said  stone  as  aforesaid ;  and  the  said  stone  was  so  placed  or  rolled  and 
left  by  you  as  aforesaid,  in  such  manner  as  to  obstruct  the  said  loco- 
motive train  or  set  of  carriages  ;  and  the  said  locomotive  train  or  set  of 
carriages,  having  a  number  of  passengers  and  other  persons  therein  or 
thereupon,  did,  shortly  after  the  said  stone  had  been  so  placed  or  rolled 
and  left  by  you  as  aforesaid,  pass  along  that  part  of  the  said  line  of 
railway  upon  or  near  to  which  you  had  so  placed  or  rolled  and  left  the 
said  stone,  and  the  engine  and  carriages  propelling  and  forming  the 
said  locomotive  train,  or  one  or  more  of  them,  did  come  violently  in 
contact  with  the  said  stone,  and  were  thereby  obstructed,  damaged, 
and  injured,  and  the  passengers  and  others  conveyed  in  or  upon  the  said 
engine  and  carriages  were  thereby  put  in  bodily  fear,  and  their  lives 
or  safety  endangered. 

Dickson,  for  the  pannel,  objected  to  tlie  relevancy  of 
the  common  law  charges  as  libelled.  The  oifences  set  forth 
in  the  major  were  both  described  as  crimes  of  intention, 
inasmuch  as  the  word  wilfully  was  contained  in  each, 
whilst  in  the  minor  it  was  said,  '  and  this  you  did  in  a 
'  manner  calculated,  and  by  you  intended,  or  in  a  man- 
^  ner  calculated  to  obstruct  the  said  trains  or  carriages, 
'  and  to  endanger  the  lives  or  safety  of  the  passengers 
'  and  other  persons  travelling  thereby,'  &c.  According 
to  the  major,  intention  was  essential  to  the  commission 
of  the  offence ;  but  in  the  minor,  by  libelling  merely  that 
the  act  was  '  calculated'  in  the  alternative,  the  libel  be- 
came illogical  and  repugnant ;  the  law  recognised  a  dif- 
ference between  crimes  of  recklessness  and  criminal 
design  (case  of  Macbean,  15th  April  1847,  Inverness, 
Arkley,  p.  262.)  The  Crown  having  charged  intent 
in  the  major,  could  not  be  allowed  to  set  forth  a  charge 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  231 

from  which  design  was  excluded,  which  was  manifestly    ^o.  34^^^ 
the  case  in  this  indictment,  from  being  placed  in  the  Murdoch. 
alternative  to  the  intended  act.  PoJ^'tJ- 

May  2. 

Deas. — ^The  libel  was  relevant,  had  it  charged  simply     1849. 


the  '  wilfully,  unlawfully,   and  recklessly  placing,'  &c.    wum 

1      1         11  1  1       •    •  Damage. 

a  stone  '  in  a  manner  calculated  to  produce  the  injury 
apprehended,  it  would  doubtless  have  been  sufficient, 
and  it  was  not  the  less  so  from  that  charge  being  inter- 
woven with  another  relevant  charge.  The  wilfiil  and 
reckless  act  was  clearly  an  oifence,  though  a  less  heinous 
one  than  the  wilful  and  malicious. 

The  objection  was  repelled. 

After  evidence  led,  the  Jury  found  the  pannel  guilty 
of  wilfully,  unlawfully,  and  recklessly  placing,  or  rolling 
and  leaving  a  stone,  &c.,  and  unanimously  recommended 
him  to  the  mercy  of  the  Court. 

In  respect  of  which  verdict  of  Assize,  the  Court  sen- 
tenced the  pannel  to  six  months  imprisonment. 


HIGH   COURT. 

Present, 

The  Lord  Justice-General,  June  2. 

1849. 

The  Lord  Jdstice-Clerk, 

Lords  Mackenzie,  Moncbeiff,  Cockbubn,  Wood,  and  Ivory. 

William  Telfer,  Suspender — Moncreiff. 

against 

Richard  John  Moxey,  Respondent — Nemes. 

Suspension — Relevancy. — Held  that  it  was  sufficient,  in  a  police 
'  complaint,  to  aver  that  the  suspender  had  resisted  or  molested  of- 
ficers of  police  iu  the  execution  of  their  duty,  without  setting  forth 
what  was  the  particular  duty  they  were  engaged  in  discharging. 

Q 


232  CASES  BEFORE  THE  HIGH  COURT 

No.  35.       This  was  a  suspension  of  a  judgment  of  the  Police 
Moxey."    Court  of  Edinburgh,  arising  out  of  the  following  circum- 

High  Court.  StaUCOS  : 

"^ma:  By  the  136th  section  of  the  Edinburgh  Police  Act,  11th 
Suspension,  and  12th  Victoria,  cap.  113,  all  publicans  are  prohibited 
from  selling  ale,  beer,  or  exciseable  liquors,  after  eleven 
o'clock  at  night.  The  respondent  had  been  in  the  habit 
of  causing  officers  from  time  to  time  to  search  the  sus- 
pender's premises  after  eleven  at  night,  with  the  view  of 
ascertaining  whether  he  allowed  drinking  in  his  establish- 
ment after  that  hour.  On  the  evening  of  Saturday,  the 
24th  of  March  1849,  the  suspender  having  heard  a  loud 
knocking  at  the  door  between  eleven  and  twelve^  inquired 
who  was  there,  and  was  answered  "  police."  He  then 
unbarred  his  door,  when  two  persons  presented  themr 
selves  in  plain  clothes,  wearing  shooting  jackets,  and  one 
of  them  with  a  cap  on,  and  proceeded,  without  the  exhi- 
bition of  any  warrant,  to  search  the  suspender's  premises. 
In  the  course  of  their  search,  the  suspender  interfered, 
and  refused  to  allow  them  to  proceed  farther  through 
his  house  without  an  exhibition  of  some  authority,  where- 
upon the  persons  went  away. 

Three  days  thereafter,  a  complaint  was  served,  upon 
the  suspender,  at  the  instance  of  the  respondent,  wherein 
he  was  accused  of  '  resisting  or  molesting  officers  of  po- 
'  lice  in  the  execution  of  their  duty.'  On  this  complaint 
evidence  was  adduced  by  both  parties,  in  relation  to  the 
facts  of  the  case.  On  the  30th  of  March  1849,  the  pre- 
siding Judge  found  the  complaint  proved  against  the 
suspender  by  evidence  adduced,  and  sentenced  him  to 
pay  a  fine  of  Two  Pounds  sterling,  or  otherwise  to  be 
imprisoned  for  a  period  of  ten  days.  The  complainer, 
with  a  view  to  suspension,  made  consignation  of  the  fine 
in  the  hands  of  the  clerk  of  the  police,  and  presented 
the  present  note  of  suspension. 

The  respondent,  in  his  answers,  set  forth  that  the 
complainer,  when  he  refused  to  allow  the  officers  to 
search  his  premises,  knew  that  they  were  policemen,  and 


anO  circuit  courts  of  justiciary.  233 

also  that  no  order,  judgment,  or  conviction  could  be  set    No.  35. 
aside,  under  the  107th  section  of  the  Edinburgh  Police   Moxey.' 

Act.  High  Court. 

MoNCEEiFF,  for  the  Suspender. — The  complaint  was  1849." 
bad,  in  respect  it  did  not  set  forth  that  the  police  were  suspension. 
in  the  execution  of  their  duty  at  the  time  the  alleged 
resistance  offered  by  the  complainer  was  made.  It  ought 
also  to  have  shewn  what  the  particular  duty  was  which 
they  professed  to  discharge.  That  would  have  enabled 
the  party  to  defend  himself  against  the  complaint,  by 
shewing  that  the  police  were  not  in  the  exercise  of  any 
legitimate  function.  This  was  necessary  to  be  averred, 
as  otherwise  policemen  might  assume  to  enter  any 
private  house  without  warrant,  or  other  lawful  cause, 
and  if  they  were  resisted,  might  proceed  to  draw  a  com- 
plaint, such  as  that  now  sought  to  be  suspended,  and 
obtain  conviction  on  a  simple  proof  that  he  had  been 
resisted,  although  the  resistance  was  justifiable  in  the  cir- 
cumstances. 

Neaves,  for  the  Respondent. — It  was  set  forth  in  the 
complaint,  that  the  party  well  knew  the  persons  whom 
he  resisted  to  be  constables,  and  this  must  be  held  to 
have  been  proved  by  the  finding  of  the  Judge.  No  spe- 
cial warrant  was  necessary  for  the  protection  of  a  police- 
man in  the  execution  of  his  duty,  and  there  was  quite 
sufficiency  of  averment  here  to  sustain  conviction  ;  and 
cited  the  precedent  of  Devitt  and  Davidson,  12th  June 
1843,  where  a  similar  objection  to  that  now  taken  was 
repelled.^ 

^  '  Michael  Devitt  and  Rose  Davidson,  both  now  or  lately  private 
'  soldiers  in  the  53d  Regiment  of  Foot,  and  now  or  lately  prisoners  in 
'  the  prison  of  Edinburgh,  were  charged  with  rioting  and  breach  of  the 
'  peace,  as  also  assault :  In  so  far  as,  on  the  1st  day  of  April  1843,  or 
'  on  one  or  other  of  the  days  of  that  month,  or  of  March  immediately 
'  preceding,  or  of  May  immediately  following,  on  or  near  that  part  of 
'  the  High  Street  of  Edinburgh  called  the  Castle  Hill,  or  Castle  Hill 
'  Street,  you  the  said  Michael  Devitt  and  Rose  Davidson  did,  both 
'  and  each,  or  one  or  other  of  you,  along  with  a  number  of  evil  dis- 
'  posed  persons,  to  the  prosecutor  unknown,  your  companions  armed 


234  CASES  BEFORE  THE  HIGH  COURT 

No.  3s.        The  Lord  Justice-General. — The  case  quoted  by  Mr 

Moxey?   Neavos  is  sufficient  authority  for  our  refusing  this  sus- 

High  Court,  pension,  on  the  ground  of  any  radical  defect  in  the  form 

1U9.'    of  the  complaint.     And,  on  the  merits,  I  see  no  reason 

Suspension,  whatsoever  to  interfere  with  the  judgment,  apart  from 

the  section  of  the  act  prohibiting  review.     In  truth,  it 

would  put  an  end  to  the  whole  police  business,  were  we 

to  sustain  objections  like  this. 

The  other  Judges  concurred,  and  the  Court  accord- 
ingly refused  the  suspension,  with  expenses. 

John  Keegan,  S.S.C. — John  Bicbabdson,  W.S.,  Agents. 


the  whole,  or  greater  part  of  you,  with  sticks  or  bludgeons,  or  other 
similar  weapons,  wickedly  and  feloniously  conduct  yourselves  in  a 
riotous  and  disorderly  manner,  assaulting  and  obstructing  the  patrols 
of  the  police,  and  other  officers  of  the  law,  when  engaged  in  the  dis- 
charge of  their  duty  on  the  public  street,  to  the  great  terror  and 
alarm  of  the  lieges,  and  in  breach  of  the  public  peace  ;  and,  in  parti- 
cular, you  the  said  Michael  Devitt  and  Rose  Davidson  did,  both  and 
each,  or  one  or  other  of  you,  then  and  there,  in  a  riotous  and  disor- 
derly manner,  and  in  breach  of  the  public  peace,  wickedly  and  felo- 
niously attack  and  assault  James  M'Ginnes,  now  or  lately  day  patrol 
of  the  Edinburgh  Police,  and  then  engaged  in  the  discharge  of  his 
duty  as  an  officer  of  the  law,  and  did,  with  sticks,  or  bludgeons,  or 
some  other  similar  weapons,  or  with  your  fists,  knock  or  fell  him  to 
the  ground,  and  when  he  was  lying  there,  did  repeatedly  kick  him, 
and  did  with  the  said  weapons  inflict  many  severe  blows  on  his  head, 
and  other  parts  of  his  person,  by  all  which  he  was  severely  and 
cruelly  wounded,  to  the  eflTusion  of  his  blood,  serious  injury  of  his 
person,  and  imminent  danger  of  his  life ;  and  you  did,  in  like  man- 
ner, then  and  there,  wickedly  and  feloniously  attack  and  assault  John 
'  Ross  and  James  Simpson,  both  now  or  lately  night  patrols  of  the 
'  Edinburgh  Police,  and  then  engaged  as  officers  of  the  law  in  the  dis- 
'  charge  of  their  duty,  and  did,  in  a  riotous  and  disorderly  manner,  and 

•  in  breach  of  the  public  peace,  resist  and  obstruct  them,  and  did  strike 

•  or  knock  the  said  James  Simpson  to  the  ground,  to  the  injury  of  his 
■  person  ;  and  all  this  you  did,  well  knowing  that  the  said  James 
'  M'Ginnes,  John  Ross,  and  James  Simpson  were,  all  and  each,  or  one 
'  or  more  of  them,  officers  of  the  law,  then  and  there  engaged  in  the 
'  execution  of  their  duty.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  235 


James  Veitch  and  Others,  Suspenders.— .4 .  Anderson — G.  H. 
Pattison. 

AGAINST 

William  Reid,  Respondent — Deas. 

Sdspension — Statute. — Held,  that  where  a  complaint  in  the  Inferior 
Court  alleged  contravention  of  bye-laws  under  a  statute  which  were 
invalid,  it  was  no  answer  to  a  suspension  to  allege  that  the  alleged 
offence  was  penal  at  common  law. 

This  was  a  Suspension  of  a  conviction  of  the  Burffh-    No.  36. 

^  °       Veitch  and 

Court  of  Jedburgh,  whereby  the  complainers  were  fined  in  others  v. 
the  sum  of  10s.  each,  or  failing  instant  payment,  to  be 


detained  in  the  Castle  of  Jedburgh  for  the  space  of  six    June  2. 
days  respectively,  unless  the  said  respective  penalties  be '- — 

.  1  Suspension. 

sooner  paid. 

The  matter  out  of  which  the  complaint  arose  was  as 
follows  : — It  appeared  to  have  been  the  custom  in  Jed- 
burgh to  play  a  game  at  ball — a  somewhat  violent  game, 
which  was  played,  not  by  throwing  or  kicking  the  ball,  but 
by  two  parties,  one  of  whom  was  in  possession  of  the  ball, 
pushing  against  each  other,  until  one  of  the  parties  could 
'  succeed  in  carrying  the  ball  to  the  goals  respectively  at 
the  other  end  of  the  town.  This  game  was  played  as 
usual  on  the  2d  February  1849,  previous  to  which  the 
Magistrates  of  the  burgh,  in  consideration  of  the  then 
prevalence  of  cholera,  had  interdicted  the  playing  of  the 
game.  By  the  statute  of  3d  and  4th  William  IV.,  c.  46, 
entituled '  an  act  to  enable  burghs  in  Scotland  to  establish 
'  a  general  system  of  police,'  provision  is  made  '  for  the 
'  voluntary  adoption  of  that  act  in  said  burghs  respec- 
'  tively  in  manner  pointed  out,  and  in  case  of  its  adop- 
'  tion,  full  power  and  authority  is  given'  to  make  all  ne- 
cessary rules  relative  to  the  watching,  lighting  of  gas, 
and  otherwise  paving  and  cleansing  the  streets,  &c.,  and, 
generally,  for  the  due  and  effectual  performance  thereof, 
for  the  prevention  of  infectious  diseases,  and  putting 


236  CASES  BEFORE  THE  HIGH  COURT 

No.  36.    down  and  removing  such  nuisances  as  may  affect  the 

Veiteh  and  .    ,     ,  ,  „ 

Others  v.  health  of  the  mhabitants,  &c. 

-  ^"^'         The  parties  who  were  authorised  under  this  act  to  carry 

^juneT'it  into  execution,  were  denominated  Commissioners  of 

.2^!!_  Police. 
Suspension,     rjij^jg  ^^.j.  ^^g  ^^^^  adopted  in  the  burgh  of  Jedburgh. 

By  the  act  10th  and  11th  Vict.,  c.  39,  it  was,  inter 
alia,  enacted,  that  where  in  a  Royal  Burgh  intending  to 
adopt  in  whole  or  in  part  the  act  of  William  IV.,  it 
should  be  lawful  for  the  Magistrates  of  such  burghs  or 
towns,  without  any  previous  application  of  householders, 
as  by  the  said  act  required,  to  convene  the  occupiers  of  pre- 
mises of  the  yearly  value  of  £10,  in  manner  by  the  said 
act  directed,  to  consider  and  determine  whether  the  pro- 
visions of  the  said  act  should  be  wholly  or  in  part  adopt- 
ed; and  it  was  also  enacted,  that  where  the  said  act 
should  be  in  whole  or  in  part  adopted  in  any  Royai 
Burgh,  all  the  powers  and  provisions  so  adopted,  should, 
instead  of  being  put  into  execution  by  commissioners 
elected  as  by  said  act  is  prescribed,  be  put  into  execution 
by  the  Magistrates  and  Council  of  said  burghs. 

The  burgh  of  Jedburgh  is  a  Royal  Burgh,  and  acting 
under  the  powers  of  10th  and  11th  Vict.,  c.  39,  the 
Magistrates  convened  a  meeting  of  the  inhabitants  hav- 
ing the  statutory  qualification,  at  which  it  was  resolved 
to  adopt  the  said  act. 

It  appeared  that  certain  bye-laws  were  passed  in  pur- 
suance thereof,  which  were  embodied  in  a  paper  having 
the  following  title : — '  By  order  of  the  Commissioners  of 
'  Police,  the  following  regulations  shall  be  strictly  ob- 
'  served  as  bye-laws  within  the  bounds  of  police  of  the 
'  burgh  of  Jedburgh,'  which  included  a  prohibition  of  the 
customary  game  of  ball. 

It  was  for  an  alleged  violation  of  these  bye-laws  that 
the  complainers  were  summoned  in  the  court  below. 

The  complaint  recited  the  act  of  Parliament  3d  and  4th 
William  IV.,  c.  46  only,  and  libelled  that  the  parties 
had  respectively  contravened  the  bye-laws  which  had  been 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  237 

-niade  by  the  Commissioners  of  Police,  acting  under  and  y^°.^^;|j 
by  virtue  of  said  statute.  others «. 

At  the  hearing  before  the  Chief  Magistrate,  the  par-— ^ 

ties  objected  to  the  relevancy  of  the  libel,  which  objec-   june  2.  ' 
tion  was  repelled,  and  the  sentence  pronounced  now 1^ — 

,  .    ,      ,  ,1  Suspension. 

sought  to  be  suspended. 

Pleaded  for  the  Suspenders — ^The  sentence  was  in- 
valid, in  respect  that  the  first  statute  of  William  IV. 
had  never  been  acted  upon  in  the  burgh  of  Jedburgh ; 
and,  consequently,  that  there  was  no  such  persons  as 
Commissioners  of  Police  entitled  to  make  any  bye-law 
under  that  act ;  the  act  of  Victoria,  which  was  adopted 
in  Jedburgh,  having  conferred  the  power  upon  the  Ma- 
gistrates and  Town-Council  only,  consequently  the  bye- 
law  was  bad,  and  as  the  substantial  charge  against  the 
complainers  was  a  violation  of  this  bye-law,  and  not  of 
any  independent  breach  of  peace,  the  conviction  could 
not  be  sustained. 

Pleaded  for  the  Respondents — ^The  Magistrates  were 
eon  officio  Commissioners  of  Police  at  common  law,  as  well 
as  under  the  statute ;  and  as  the  game  sought  to  be  pro- 
hibited was  eminently  dangerous  in  the  time  of  pestilence, 
and  was  moreover  an  obstruction  to  the  business  of  the 
town,  they  had  power  to  prevent  the  same  by  giving  due 
warning,  and  to  punish  a  violation  of  their  order. 

The  Lord  Justice-Cleek. — The  charge  is  one  under 
the  statute.  Nothing  is  said  as  to  the  violation  of  the 
common  law. 

Deas. — All  that  was  done  was  competent  under  the 
general  powers  of  police  vested  in  the  Magistrates  and 
Town-Council. 

The  LoED  Justice-Cleek. — We  are  not  here  to  con- 
sider the  general  powers  of  the  Magistrates  and  Town- 
Council,  but  to  examine  the  validity  of  a  complaint  un- 
der a  particular  statute. 

LoED  Wood. — Under  the  act  of  Victoria,  the  parties 
entitled  to  make  bye-laws  are  Magistrates,  and  not  Com- 
missioners of  Police.     You  libel  a  contravention  of  cer- 


238  CASES  BEFORE  THE  HIGH  COURT 

No.  36.    tain  bye-laws  made  by  the  Commissioners  of  Police,  a 

Veitch  and  j  j  mi  i. 

Others  V.  body  who  never  existed  in  the  burgh.    That  goes  to  the 

Keid.  , 

whole  case. 

High  Court.  .  i  •   i  u 

June  2.        Deas. — ^That  was  only  a  misnomer,  which  would  not 

1—  vitiate  a  criminal  complaint,  especially  as  the  parties 

uspension.  ^^^  euactcd  the  bye-laws  were  entitled,  ea,'  officio,  to 
exercise  their  functions  as  Commissioners  of  Police. 

The  LoED  Justice-Clerk. — It  is  impossible  not  to 
suspend  in  this  case.  It  is  expressly  alleged  on  the  face 
of  the  complaint,  that  the  parties  enacting  the  bye^laws 
were  Commissioners  of  Police  acting  under  the  statute 
of  William  IV.,  whereas  that  act  was  never  adopted  in 
the  burgh,  except  under  the  provisions  of  the  act  of 
Victoria,  which  abolished  the  statutory  functions  of  the 
Commissioners  of  Police  created  by  the  former  statute. 
Whether  or  not  they  could  have  prohibited  the  game  by 
virtue  of  their  common  law  powers,  it  is  not  necessary 
to  determine — perhaps  they  might,  though  I,  for  one, 
should  hesitate  to  encourage  the  abolition  of  an  old  and 
customary  game,  which  from  time  immemorial  had  been 
enjoyed  by  the  community. 

The  rest  of  the  Court  concurred,  and  the  Note  of  Sus- 
pension was  accordingly  passed,  with  expenses. 


Charles  Jameson,  Suspender — Deas. 


David  Pilmeh,  Respondent — Nea-ees. 

Suspension — Informality. — Circumstances  in  which  it  was   hehl, 
that,  where  a  man  had  been    summarily  apprehended  without  war- 
Janie'aon  D.      ''^°*  "''  ^^^^^  intimation  of  the  charge  against  him  before  trial,  the 
Pilmer.         conviction  could  not  be  sustained. 

Hi,s;h  Court. 

June  2.        This  was  a  suspension  on  the  part  of  Jameson,  arising 
: —  out  of  the   same  transaction  narrated  in  the  case  of 

SuBpension- 

Ritchie  against  Pilmer  {ante,  p.  142.) 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  239 

In  addition  to  the  circumstances  referred  to  in  the    No.  37. 
previous  report,  the  suspender  alleged,  that  '  while  he    piimer. ' 


'  was  assiduously  discharging  his  duty  in  the  vessel,  his  High  Court. 

'  farther  services  were  very  speedily  and  abruptly  inter-     "848, 

'  rupted,  and  put  an  end  to,  by  the  respondent,  Mr  Pil-  suspension. 

'  mer,  as  Superintendent  of  the  Harbour  Police,  ordering 

'  a  policeman,  at  the  instigation,  it  is  believed,  of  the 

'  ship's  agent,  Mr  Jack,  to  carry  off  the  complainer  to 

'  Bridewell.     This  was  immediately  done,  without  the 

'  slightest  explanation  being  made  to  the  complainer,  and 

'  without  any  warrant  whatever  against  him  being  in 

'  existence.     No  accusation  or  charge  even  was  at  this 

'  time  made  against  the  complainer  by  any  one.' 

Deas. — The  conviction  could  not  be  sustained,  not  only 
on  the  ground  of  the  irregular  way  in  which  Jameson 
was  apprehended,  but  also  on  the  ground,  that  having 
expected  to  have  had  the  benefit  of  his  master's  evidence, 
who  had  been  called  as  a  witness,  and  whose  testimony 
would  have  exonerated  him,  the  Bailie  deprived  him  of 
that  right  by  the  wrongful  proceedings  against  Ritchie. 
Circumstances  had  prevented  him  from  suspending 
sooner,  but  he  had  presented  his  note  the  earliest  mo- 
ment he  was  able. 

Neaves. — This  suspension  was  too  late,  being  many 
months  after  the  expiry  of  the  sentence,  and  that  undue 
delay  must  be  considered  in  dealing  with  the  case. 

The  Lord  Justice-Clerk. — We  think  he  is  entitled 
to  have  his  note  of  suspension  entertained,  in  order  to 
get  free  of  the  conviction  now  standing  against  him. 

Neaves. — The  suspension  by  the  Captain,  on  the 
ground  of  the  informality  of  the  proceedings  against  him, 
had  no  application.  The  Court  sustained  the  objection 
in  his  case,  on  the  ground,  that  having  been  cited  as  a  wit- 
ness, he  could  not  afterwards  be  summarily  charged  as  a 
pannel.  Jameson  had  no  interest  to  complain  of  the 
proceedings  adopted  against  Ritchie.  Had  he  wished 
Ritchie  as  an  evidence,  he  should  have  moved  the  Court 
to  have  the  cases  tried  separately ;  but  no  such  motion 


240  CASES  BEFORE  THE  HIGH  COURT 

No.  37.    was   made  at  the  trial,  and  it  was   too   late   to  com- 

Jameson  'O,  „  . ,         4.   ■    1 

Piimer.    plain  of  any  injury  that  he  sustamed  irom   tne   tnal. 
High  Court,  as,  in  the  absence  of  any  objection,  it  must  be  held  that 
"849.'    he  concurred  in  the  course  adopted.     In  respect  of  the 
Suspension,  apprehension,  there  was  nothing  incompetent  in  the  way 
that  was  effected.     The  general  powers  of  the  police  to 
apprehend  a  person,  said  to  have  stolen  goods  in  his  pos- 
session, could  not  be  doubted ;  and  it  was  quite  enough 
if  a  regular  complaint  was  preferred  against  him  at  the 
time  of  trial. 

The  Lord  Justice-General. — I  am  decidedly  of  opi- 
nion that  there  is  nothing  to  warrant  the  procedure  com- 
plained of,  which  seems  to  me  to  be  contrary  to  the  first 
principles  of  justice.  The  process  is  far  too  summary, 
and  seems  as  if  intended  to  try  a  man  without  giving  him 
notice  of  the  charge  he  is  to  answer.  Having  been  ap- 
prehended without  a  warrant  over  night,  and  consigned 
to  jail,  he  hears  the  charge  read  to  him,  for  the  first  time, 
when  placed  at  the  bar  on  the  following  morning,  and 
he  is  then  deprived  of  the  evidence  of  his  Captain,  by 
the  respondent  putting  both  their  names  in  the  complaint. 
I  do  not  think  this  a  case  where  any  emergency  arose, 
calling  for  an  extraordinary  exercise  of  the  powers  of  the 
police.  On  the  contrary,  I  think  it  utterly  unjustifiable 
to  proceed  to  try  a  person  on  such  a  charge,  without  due 
and  proper  notice  of  the  offence  intended  to  be  charged 
against  him. 

The  Lord  Justice-Clerk. — I  am  of  the  same  opinion. 
The  Dundee  Harbour  Act  requires,  in  summary  cases, 
that  the  procedure  shall  either  commence  by  warrant  or 
by  summons;  and,  according  to  the  law  of  Scotland, 
either  of  these  instruments  must  bear  the  cause  of  appre- 
hension or  citation.  There  is  no  allegation,  in  this  case, 
that  the  suspender  was  about  to  escape,  so  as  to  render 
it  necessary  to  apprehend  him,  except  in  the  regular 
way ;  and  I  am  of  opinion,  that,  in  that  respect,  the  pro- 
cedure cannot  be  sustained ;  and  I  am  also  farther  of 
opinion,  that 'on  the  broad  ground  of  natural  justice  we 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  241 

ought  to  suspend  the  present  conviction.    The  depriving  j^^°J^; 
the  man  of  the  evidence  of  his  Captain,  which,  they  knew,    PJimer. 
would  exonerate  him  from  the  charge,  was  a  most  dis-  '^f^^J'^'^- 
creditable  proceeding,  and  entitles  the  suspender  to  our     i849. 

judgment.  Suspension. 

Lord  Mackenzie. — I  am  not  quite  so  clear  as  the 
rest  of  the  Court,  but  I  concur  in  the  judgment  about  to 
be  pronounced,  on  the  ground  that  the  whole  proceedings 
were  too  summary,  and  that  the  suspender  had  not  suf- 
ficient time  or  notice  to  prepare  his  defence. 

LoEDS  MoNCREiFF,  CocKBURN,  WooD,  and  Ivory  con- 
curred. 

The  Court  accordingly  suspended  the  charge,  with 

costs. 

WoTHERSPooN  and  Mack — Lockhart,  Hunter,  and  Whitehead,  Agents. 


Present, 
The  Lord  Justice-Clerk, 


Lords  Wood  and  Ivory.  "^"'y  ^' 

1849. 

Her  Majesty's  Advocate — Deas  A.D. 


James  Chisholm —  W.  H.  Thomson. 

Indictment — Theft — Falsehood,  Fraud  and  Wilful  Imposition 
— Eelevanct. — Circumstances  in  which  a  cumulative  charge  of 
falsehood,  fraud,  &c.,  together  with  theft,  was  sustained  as  relevant 
on  the  same  species  facti. 

James  Chisholm  was  charged  with  Falsehood,  Fraud,    j";^^^- 
and  Wilful  Imposition,  as  also  Theft.  chishoim. 

High  Court. 
In  so  PAR  AS,  on  the  1st  day  of  January  1849,  or  on  one  or  other  of      ig^g^" 
the  days  of  that  month,  or  of  Decemher  immediately  preceding,  or  of  — — 

February  immediately  following,  on  or  near  the  farm  of  Sheriflfhall  Fraud,  &c. 


242  CASES  BEFORE  THE  HIGH  COURT 

No.  38.     Mains,  situated  in  or  near  the  parish  of  Newton,  and  county  of  Edin- 
Chisholm    ^^^SK  tlien  and  now  or  lately  occupied  by  George  Seton,  then  and 
now  or  lately  tenant  of  the  said  farm,  and  then  and  now  or  lately 


^'julyT''  residing  there,  you  the  said  James  Ohisholm  did,  wilfully,  wickedly, 
1849.'     falsely,  fraudulently,  and  feloniously,  represent  and  pretend  to  the 
Falsehood,  said   George   Seton  that  if  he  would  agree  to  sell  to  you  five,  or 
Fraud,  &c.  thereby,  bolls  of  potatoes,  to  be  delivered  by  him  or  by  his  servant  on 
the  following  day,  at  the  shop  or  premises  in  or  near  Stockbridge,  then 
occupied  by  Mr  Eobb,  a  victual -dealef,  meaning  thereby  the  shop  or 
premises  then  occupied  by  Walter  Robb,  then  and  now  or  lately  a 
victual-dealer  in  or  near  Baker's  Place,  Stockbridge,  in  or  near  Edin- 
burgh, or  meaning  thereby  the  shop  or  premises  then  occupied  by  some 
person  of  the  name  of  Robb  to  the  prosecutor  unknown,  you  the  said 
James  Chisholm  would  await  the  arrival  of  the  said  potatoes  at  the 
said  shop  or  premises;  and  pay  the  price  thereof  on  delivery ;  or  yon 
did  make  some  other  and  similar  false  and  fraudulent  representation  or 
representations  to  the  said  George  Seton  ;  and  the  said  George  Seton 
was,  by  the  false  and  fraudulent  representation  or  representations  made 
by  you  to  him  as  aforesaid,  or  part  thereof,  induced  to  agree  to  sell  to 
you  five,  or  thereby,  bolls  of  potatoes,  at  the  price  of  14s.  sterling,  or 
thereby,  per  boll,  and  to  send  the  same  on  the  following  day  for  delivery 
at  the  shop  or  premises  in  or  near  Baker's  Place  aforesaid,  then  and 
now  or  lately  occupied  by  the  said  Walter  Robb,  under  the  charge  of 
James  Denny,  then  and  now  or  lately  farm-servant  to  the  said  George 
Seton,  and  then  and  now  or  lately  residing  at  Sherifi'hall  Mains  afore- 
said ;  and  the  said  James  Denny  having,  by  directions  of  the  said 
George  Seton,  accordingly,  on  the  following  day  conveyed  the  foresaid 
quantity  of  potatoes  to  Edinburgh,  for  the  purpose  of  being  delivered 
as  aforesaid,  and  of  receiving  payment  of  the  price  as  aforesaid,  and 
you  having  joined  the  said  James  Denny  at  or  near  Newington,  near 
Edinburgh,  while  on  his  way  to  Edinburgh  as  aforesaid,  you  did  prevail 
upon  the  said  James  Denny  to  accompany  you  to  the  shop  or  premises 
in  or  near  Baker's  Place  aforesaid,  then  and  now  or  lately  occupied  by 
the  said  Walter  Robb,  and  to  the  shop  or  premises  situated  in  or  near 
Higli  Street,  in  or  near  Edinburgh,  then  and  now  or  lately  occupied 
by  Thomas  Hope,  then  and  now  or  lately  a  grocer  there,  and  to  the 
shop  or  premises  situated  in  or  near  Huntly  Street,  in  or  near  Edin- 
burgh, then  and  now  or  lately  occupied  by  Alexander  Mitchell  Dick,  a 
wine-merchant  and  grocer,  then  and  now  or  lately  residing  there,  and 
to  the  shop  or  premises  situated  in  or  near  India  Place,  in  or  near 
Edinburgh,  then  and  now  or  lately  occupied  by  William  Thomson,  a 
victual-dealer,  then  and  now  or  lately  residing  there,  or  to  one  or  more 
of  these  places,  or  to  some  other  place  or  places  in  or  near  Edinburgh 
to  the  prosecutor  unknown,  and  you  did  farther  prevail  upon  the  said 
James  Denny  to  deliver  to  the  said  Walter  Robb,  Thomas  Hope, 
Alexander  Mitchell  Dick,  William  Thomson,  and  others  aforesaid,  or 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  243 

to  some  of  them,  either  for  your  behoof  or  for  their  own  behoof,  as     No.  38. 

alleged  purchasers  from  you,  or  otherwise,  the  said  five,  or  thereby  r^^^^f 

bolls  of  potatoes,  in  various  quantities  or  proportions  :  and  all  this  or 

.  .1.        r  -1  J  xi.         -J    T  -r.  XI  HighCourt. 

part  thereof,  you  so  prevailed  on  the  said  James  Denny  to  do,  upon     jj,iy  9_ 

your  false  and  fraudulent  representation  and  promise  to  him,  that  you  1"*9- 
would,  immediately  after  the  said  delivery  of  the  said  potatoes,  pay  to  Falsehood, 
him,  for  behoof  of  the  said  George  Seton,  the  foresaid  agreed-on  price  *™"">  °'°" 
thereof,  which  you  wilfully,  wickedly,  and  fraudulently  failed  to  do, 
and  you  did  wickedly,  fraudulently,  and  feloniously  appropriate  the 
said  potatoes,  or  part  thereof,  to  your  own  uses  and  purposes ;  and  you 
did,  at  or  near  the  shop  or  premises  in  or  near  Baker's  Place  aforesaid, 
and  at  or  near  the  shop  or  premises  in  or  near  High  Street  aforesaid, 
and  at  or  near  the  shop  or  premises  in  or  near  Huntly  Street  aforesaid, 
and  at  or  near  the  shop  or  premises  in  or  near  India  Place  aforesaid, 
all  respectively  occupied  as  aforesaid,  or  at  or  near  one  or  more  of 
them,  or  at  or  near  some  place  or  places  in  or  near  Edinburgh  to  the 
prosecutor  unknown,  wickedly  and  feloniously,  steal  and  theftuously 
away  take,  in  various  quantities  or  proportions  as  aforesaid,  the  fore- 
said five,  or  thereby,  bolls  of  potatoes,  the  property,  or  in  the  lawful 
possession,  of  the  said  George  Seton,  or  in  the  lawful  possession  of  the 
said  James  Denny ;  And  you  the  said  James  Chisholm  have  been  pre- 
viously convicted  of  falsehood,  fraud,  and  wilful  imposition,  and  you 
have  been  previously  convicted  of  theft. 

Thomson  objected  to  the  relevancy  of  the  indictment, 
in  respect  that  it  charged  the  pannel  with  two  distinct 
crimes,  whilst  only  one  overt  act  was  set  forth.  The 
theft  was  nothing  more  than  the  successful  completion 
of  the  falsehood,  fraud,  and  wilful  imposition  previously 
libelled,  the  appropriation  of  the  goods  being  set  forth 
as  the  substantive  portion  of  such  crime.  Case  of  JRo- 
bertson,  25th  May  1835  ;  Bell's  Notes,  p.  18. 

Deas  referred  to  the  case  of  Grahame,  Glasgow  Christ- 
mas Circuit  1847,  where  swindling  and  theft  were  charged 
cumulatively  on  the  same  act,  and  which,  although  not 
objected  to  by  the  prisoner,  had  been  adverted  upon,  and 
sustained  as  competent  by  the  Court.-' 

* '  Mabgaret  Grahame,  now  or  lately  prisoner  in  the  prison  of 
^  Glasgow,  you  are  indicted  and  accused,  at  the  instance  of  Andrew 
'  Rutherfurd,  Esquire,  Her  Majesty's  Advocate  for  Her  Majesty's  in- 
'  terest :  That  albeit,  by  the  laws  of  this  and  of  every  other  well- 
'  governed  realm,  Falsehood,  Fraud,  and  Wilful  Imposition,  especially 


244  CASES  BEFORE  THE  HIGH  COURT 

No.  38.        The  Lord  Justice-Clerk. — The  indictment,  in  the 

James  .        ,  . 

Chishoim.  case  of  Grahame,  differs  from  the  present  in  this  respect, 
High  Court,  that  the  taking  possession  of  the  goods  was  not  twice 

1849.'       — — ^ 

Falsehood,  '  when  committed  by  a  person  who  has  been  previously  convicted 
Fraud,  &c.  i  thereof;  As  also.  Theft,  are  crimes  of  a  heinous  nature,  and  severely 
'  punishable  :  Yet  tjbub  it  is  and  of  verity,  that  you  the  said  Mar- 
'  garet  Grahame  are  guilty  of  the  said  crime  of  falsehood,  fraud,  and 
'  and  wilful  imposition,  aggravated  as  aforesaid,  and  of  the  said  crime 
'  of  theft,  or  of  one  or  other  of  them,  actor,  or  art  and  part :  In  so  par 
'  AS  (1.),  upon  the  24th  day  of  July  1847,  or  on  one  or  other  of  the 
'  days  of  that  month,  or  of  June  immediately  preceding,  or  of  August 
'  immediately  following,  in  or  near  the  shop  or  warehouse  situated  in 
'  or  near  Buchanan  Street,  in  or  near  Glasgow,  then  and  now  or  lately 
'  occupied  by  Eobertson  Buchanan  Stewart  and  John  MacDonald, 
'  then  and  now  or  lately  carrying  on  business  there  as  drapers,  under 
«  the  firm  of  Stewart  and  MacDonald,  you  the  said  Margaret  Grahame 
'  did,  wickedly  and  feloniously,  falsely,  fraudulently,  and  wilfully,  re- 
'  present' to  Benjamin  "West,  then  and  now  or  lately  salesman  to  the  said 
'  Stewart  and  Macdonald,  or  to  some  other  person  to  the  prosecutor 
'  unknown,  acting  on  account  of  the  said  Stewart  and  MacDonald, 
'  that  you  had  been  sent  by  Miss  Paton,  residing  at  No.  8  Newton 
'  Place,  in  or  near  Glasgow,  to  look  at,  for  her,  some  merinos  or  simi- 
'  lar  goods,  and  to  order  the  same  to  be  sent  to  her  at  No.  8  Newton 
'  Place  aforesaid,  for  inspection,  with  a  view  to  purchase ;  and  the  said 
'  Benjamin  West,  or  other  person  to  the  prosecutor  unknown,  was 
'  thereby,  or  by  some  similar  false  and  fraudulent  representation  made 
'  ''y  yoii  3s  aforesaid,  imposed  upon  and  induced  to  send  to  No.  8 
'  Newton  Place  aforesaid,  then  and  now  or  lately  occupied  by  William 
'  Patrick  Paton,  then  and  now  or  lately  merchant  in  Glasgow,  thirty- 
'  eight  yards,  or  thereby,  of  merino,  and  lining  for  two  dresses,  or 
'  thereby,  which  you  the  said  Margaret  Grahame  received  and  appro- 
'  priated  as  after  libelled :  Farther,  time  above  libelled,  at  or  near 
'  the  house  No.  8  Newtou  Place  aforesaid,  you  the  said  Margaret 
'  Grahame  did,  wickedly  and  feloniously,  falsely,  fraudulently,  and 
'  wilfully,  represent  to  Agnes  Lyon,  then  and  now  or  lately  servant 
'  to  the  said  William  Patrick  Paton,  or  in  the  said  house,  that  a  parcel 
'  containing  the  articles  above  libelled,  which  was  then  in  the  said 
'  house,  had  been  left  there  by  mistake,  and  that  it  was  intended 
'  for  a  Mrs  James  Paton,  or  for  some  other  person  whom  you  then 
'  named,  but  whose  name  is  to  the  prosecutor  unknown ;  and  having 
'  thereby,  or  by  some  similar  false  and  fraudulent  representation,  im- 
'  posed  upon  the  said  Agnes  Lyon,  and  induced  her  to  deliver  to  you 
'  the  said  parcel  containing  the  articles  above  libelled,  or  part  thereof, 
'  you  did,  then  and  there,  wickedly  and  feloniously,  steal  and  theftu- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  245 

libelled  as  a  crime,  but  was  only  charged  as  constituting    No.  38. 
the  theft.    The  facts  constituting  the  swindling  being  chishoim. 
the  various  deceptions  by  which  the  prisoner  had  been  HighCourt. 

July  9. 
— 1849. 


ously  away  take,  the  said  parcel  containing  the  articles  above  libelled,  Falsehood, 
or  part  thereof,  the  property,  or  in  the  lawful  possession,  of  the  said  ^''*"'^>  *•=■ 
Robertson  Buchanan  Stewart  and  John  MacDouald,  or  one  or  other  of 
them,  or  in  the  lawful  possession  of  the  said  Agnes  Lyon :  Or  other- 
wise, time  and  place  last  above  libelled,  you  the  said  Margaret 
Grahame  did,  wickedly  and  feloniously,  steal  and  theftuously  away 
take,  a  parcel,  containing  the  articles  above  libelled,  or  part  thereof, 
the  property,  or  in  the  lawful  possession,  of  the  said  Robertson 
Buchanan  Stewart  and  John  MacDonald,  or  one  or  other  of  them,  or 
in  the  lawful  possession  of  the  said  Agnes  Lyon :  Likeas  (2.),  upon 
the  7th  day  of  August  1847,  or  on  one  or  other  of  the  days  of  that 
month,  or  of  July  immediately  preceding,  or  of  September  imme- 
diately following,  within  or  near  the  shop  situated  in  or  near  Argyle 
Street  of  Glasgow,  then  and  now  or  lately  occupied  by  John  M'ln- 
tosh,  Ninian  Scouller,  and  James  Donaldson,  then  and  now  or  lately 
carrying  on  business  there  as  drapers,  under  the  firm  of  M'Intosh, 
'  Scouller,  and  Donaldson,  you  the  said  Margaret  Grahame  did,  wick- 
'  edly  and  feloniously,  fasely,  fraudulently,  and  wilfully,  represent  to 
the  said  Ninian  Scouller,  and  to  John  Fulton,  then  and  now  or  lately 
salesman  to  the  said  M'Intosh,  Scouller,  and  Donaldson,  or  to  one 
or  other  of  them,  or  to  some  other  person  to  the  prosecutor  unknown, 
acting  on  account  of  the  said  M'Intosh,  Scouller,  and  Donaldson, 
that  you  had  been  sent  by  Mr  John  Young,  residing  at  N.  1  Blythes- 
wood  Square,  in  or  near  Glasgow,  or  by  one  or  more  ladies,  members 
of  his  family,  or  residing  in  his  house,  to  look  at,  for  him  or  them, 
some  tartans  or  similar  goods,  and  to  order  the  same  to  be  sent  to 
No.  1  Blytheswood  Square  aforesaid,  for  inspection,  with  a  view  to 
•  purchase  ;  and  the  said  Ninian  Scouller  and  John  Fulton,  or  one  or 
other  of  them,  or  other  person  to  the  prosecutor  unknown,  was  there- 
by, or  by  some  similar  false  and  fraudulent  representation  made  by 
you  as  aforesaid,  imposed  upon  and  induced  to  send  to  the  house 
No.  1  Blytheswood  Square  aforesaid,  then  and  now  or  lately  occu- 
pied by  John  Young,  merchant,  then  and  now  or  lately  residing 
there,  twenty -four,  or  thereby,  yards  of  tartan  cloth,  which  you  the 
said  Margaret  Grahame  received  and  appropriated  as  after  libelled : 
Farther,  time  above  libelled,  at  or  near  the  house  No.  1  Blythes- 
wood Square  aforesaid,  you  the  said  Margaret  Grahame  did,  wicked- 
ly and  feloniously,  falsely,  fraudulently,  and  wilfully,  represent  to 
Margaret  Struthers,  or  to  Janet  Cochrane,  both  then  and  now  or 
lately  servants  to  the  said  John  Young,  or  in  the  said  house,  that  a 
parcel  containing  the  tartan  cloth  above  libelled,  which  was  then  in 


246  CASES  BEFORE  THE  HIGH  COURT 

No.  38.    enabled  to  eret  the  aroods  into  his  possession.    That  case, 

James  o  o  i.  •    j-    a 

Chishoim.  therefore,  affords  no  precedent  for  the  present  mdict- 
High  Court,  ment,  and  the  obiection  must  therefore  be  sustained. 

July  9.  ■' 

1849. 

Falsehood,  '  the  said  house,  had  been  left  there  by  mistake,  and  that  it  was  in- 
Fraud,  &c.  .  tended  for  a  Mr  John  Young,  No.  21  George  Square,  or  for  some 
'  other  person  whom  you  then  named,  but  whose  name  is  to  the  prosecu- 
'  tor  unknown  ;  and  having  thereby,  or.  by  some  similar  false  and  fran- 
'  dulent  representation,  imposed  upon  the  said  Margaret  Struthers  or 
'  Janet  Cochrane,  and  induced  her  to  deliver  to  you  the  said  parcel 
'  containing  the  tartan  cloth  above  libelled,  or  part  thereof,  you  did, 
'  then  and  there,  wickedly  and  feloniously,  steal  and  theftuously  away 
'  take,  the  said  parcel,  containing  the  tartan  cloth  above  libelled,  or 
'  part  thereof,  the  property,-  or  in  the  lawful  possession,  of  the  said 
'  John  M'Intosh,  Ninian  ScouUer,  and  James  Donaldson,  or  one  or 
'  other  of  them,  or  in  the  lawful  possession  of  the  said  Margaret  Stru- 
'  thers  and  Janet  Cochrane,  or  one  or  other  of  them :  Or  otherwise, 
'  time  and  place  last  above  libelled,  you  the  said  Margaret  Graharae 
'  did,  wickedly  and  feloniously,  steal  and  theftuously  away  take  a 
'  parcel  containing  the  said  tartan  cloth  above  libelled,  or  part  thereof, 
'  the  properly,  or  in  the  lawful  possession,  of  the  said  John  M'Intosh, 
'  Ninian  ScouUer,  and  James  Donaldson,  or  one  or  other  of  them,  or 
'  in  the  lawful  possession  of  the  said  Margaret  Struthers  and  Janet 
'  Cochrane,  or  one  or  other  of  them :  Likbas  (3.),  upon  the  19th  day 
'  of  August  1847,  or  on  one  or  other  of  the  days  of  that  month,  or  of 
'  July  immediately  preceding,  or  of  September  immediately  following, 
'  within  or  near  the  shop  situated  in  or  near  Argyle  Street  of  Glasgow, 
'  then  and  now  or  lately  occupied  by  John  Handley,  now  or  lately 
'  trunkmaker  there,  you  the  said  Margaret  Grahame  did,  wickedly 
'  and  feloniously,  falsely,  fraudulently,  and  wilfully,  represent  to  the 
'  said  John  Handley,  or  to  David  Lister,  then  and  now  or  lately  ap- 
'  prentice  to  the  said  John  Handley,  that  you  had  been  sent  by  Mr 
'  Campbell,  No.  305  Saint  Vincent  Street,  in  or  near  Glasgow,  to  look 
'  at,  for  him,  or  to  order  some  carpet  or  other  bags  to  be  sent  to  his 
'  house.  No.  305  Saint  Vincent  Street  aforesaid,  for  inspection,  with  a 
'  view  to  purchase ;  and  the  said  John  Handley  and  David  Lister,  or 
'  one  or  other  of  them,  were  thereby,  or  by  some  similar  false  and 
'  fraudulent  representation  made  by  you  as  aforesaid,  imposed  upon 
'  and  induced  to  send  to  No.  305  Saint  Vincent  Street  aforesaid,  then 
'  and  now  or  lately  occupied  by  John  Campbell,  merchant  and  ship- 
'  broker  in  Glasgow,  a  carpet  bag,  and  a  leather  bag,  which  you  the 
'  said  Margaret  Grahame  received  and  appropriated  as  after  libelled  : 
'  Further,  upon  the  20th  day  of  August  1847,  or  on  one  or  other  of 
'  the  days  of  that  month,  or  of  July  immediately  preceding,  or  of  Sep- 
'  tember  immediately  following,  at  or  near  the  house  No.  305  Saint 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  247 

Lords  Wood  and  Ivory  concurred.  No-  sb. 

James 

The  charge  of  theft  was  then  withdrawn.  CMshoim. 

Thomson  then  objected  to  the  relevancy  of  the  indict-  HighCourt. 


184.9. 


Vincent  Street  aforesaid,  you  the  said  Margaret  Grahame,  did,  ■wick-  Falsehood, 
edly  and  feloniously,  falsely,  fraudulently,  and  wilfully,  represent  to  ™"  ' 
Margaret  Ferguson,  then  and  now  or  lately  servant  to,  and  residing 
■with,  Sarah  Jane  Forbes  or  Campbell,  widow,  or  in  the  said  house, 
that  the  bags  above  libelled,  which  were  then  in  the  house,  had  been 
left  there  by  mistake,  and  that  they  ■were  intended  for  a  Mr  Robert 
Campbell,  or  for  some  other  person  whom  you  then  named,  but  whose 
name  is  to  tlie  prosecutor  unknown  ;  and  having  thereby,  or  by  some 
similar  false  and  fraudulent  representation,  imposed  upon  the  said 
Margaret  Ferguson,  and  induce  her  to  deliver  to  you  the  said  bags 
above  libelled,  you  did,  then  and  there,  wickedly  and  feloniously, 
steal  and  theftuonsly  away  take  the  two  bags  above  libelled,  the 
property,  or  in  the  lawful  possession,  of  the  said  John  Handley,  or 
in  the  lawful  possession  of  the  said  Margaret  Ferguson  :  Or  other - 

■  WISE,  time  and  place  last  above  libelled,  you  the  said  Margaret 
'  Grahame  did,  wickedly  and  feloniously,  steal  and  theftuously  away 
'  take  the  two  bags  above  libelled,  the  property,  or  in  the  lawful  pos- 
'  session,  of  the  said  John  Handley,  or  in  the  lawful  possession  of  the 
'  said  Margaret  Ferguson  :  Likbas  (4.),  upon  the  21st  day  of  August 
'  1847,  or  on  one  or  other  of  the  days  of  that  month,  or  of  July  im- 

•  mediately  preceding,  or  of  September  immediately  following,  within 

•  or  near  the  shop  situated  in  or  near  Argyle  Arcade,  in  or  near  Glas- 

•  gow,  then  and  now  or  lately  occupied  by  Andrew  Watson,  hosier 

■  and  glover  there,  you  the  said  Margaret  Grahame  did,  wickedly  and 
'  feloniously,  fasely,  fraudulently,  and  wilfully,  represent  to  Agnes 
'  Reid,  then  and  now  or  lately  shopwoman  to  the  said  Andrew  Wat- 
'  son,  or  to  some  other  person  to  the  prosecutor  unknown,  acting  on  his 
'  account,  that  you  had  been  sent  by  Mr  Wingate,  No.  141  Bath 
'  Street,  in  or  near  Glasgow,  to  look  at,  for  him,  some  travelling-bags, 
'  and  to  order  the  same  to  be  sent  to  him  at  No.  141  Bath  Street  afore- 
'  said  for  inspection,  with  a  view  to  purchase ;  and  the  said  Agnes 
'  Reid,  or  other  person  to  the  prosecutor  unknown,  was  thereby,  or  by 
'  some  similar  false  and  fraudulent  representation  made  by  you  as 
'  aforesaid,  imposed  upon  and  induced  to  send  to  No.  141  Bath  Street 
'  aforesaid,  then  and  now  or  lately  occupied  by  Andrew  Wingate,  then 
'  and  now  or  lately  merchant  in  Glasgow,  three,  or  thereby,  travelling- 
'  bags,  or  to  deliver  the  same  to  Ann  M'Intosh,  then  and  now  or  lately 
'  in  his  service  as  a  message-girl,  with  instructions  to  carry  the  same 
'  to  No.  141  Bath  Street  aforesaid;  and  you  the  said  Margaret 
'  Grahame  did  receive  and  appropriate  the  same  as  after  libelled: 
'  Farther,  time  last  above  libelled,  at  or  near  the  house  No.  141 


248  CASES  BEFORE  THE  HIGH  COURT 

No.  38.    raent,  in  so  far  as  it  charged  swindling,  in  respect  that  it 
chishoim.  did  not  contain  either  a  statement  that  the  prisoner  as- 


High  court,  sumed  a  false  character,  whereby  he  had  obtained  pos- 

July  9. 
1849.  ■ 

Falsehood,  '  Bath  Street  aforesaid,  you  the  said  Margaret  Grahame  did,  wickedly 

Fraud,  &o.  <  ^nj  feloniously,  falsely,  fraudulently,  and  wilfully,  represent  to  the 

'  said  Ann  M'lntosh,  who  was  then  in  thepossession  of  the  bags  above 

'  libelled,  which  had  been  delivered  to  her  as  aforesaid,  that  the  said 

'  Andrew  Wingate  required  the  same  to  be  taken  to  his  oflSce  situated 

'  in  or  near  Queen  Street,  in  or  near  Glasgow ;  and  the  said  Ann 

'  M'lntosh,  being  thereby  imposed  upon  and  induced  to  accompany 

•  you  into  Saint  Vincent  Lane,  in  or  near  Glasgow,  or  into  a  close  in 

'  the  neighbourhood  thereof,  you  did,  then  and  there,  deceive  and  im- 

'  pose  upon  her,  and  induce  her  to  deliver  the  said  bags  to  you,  by 

'  falsely,  fraudulently,  and  wilfully,  stating  or  representing  to  her, 

'  that  you  would  yourself  carry  the  same  to  the  said  Andrew  Wingate 

'  at  his  office  aforesaid,  and  you  did,  then  and  there,  receive  and  ap- 

'  propriate,  and  did,  wickedly  and  feloniously,  steal  and  theftnously 

'  away  take,  the  three  travelling-bags  above  libelled,  the  property,  or 

'  in  the  lawful  possession,  of  the  said  Andrew  "Watson,  or  in  the  law- 

'  ful  possession  of  the  said  Ann  M'lntosh  :  Or  otherwise,  time  last 

'  above  libelled,  and  in  or  near  Saint  Vincent  Lane  aforesaid,  or  in 

'  or  near  a  close  in  the  neighbourhood  thereof,  you  the  said  Margaret 

'  Grahame  did,  wickedly  and  feloniously,  steal  and  theftuously  away 

'  take  the  three  travelling  bags  above  libelled,  the  property,  or  in  the 

'  lawful  possession,  of  the  said  Andrew  Watson,  or  in  the  lawful  pos- 

'  session  of  the  said  Ann  M'lntosh  :  Likbas  (5.),  upon  the  6th  day  of 

'  September  1847,  or  on  one  or  other  of  the  days  of  that  month,  or  of 

'  August  immediately  preceding,  or  of  October  immediately  following, 

'  within  or  near  the  shop  situated  in  Argyle  Street  of  Glasgow,  then 

'  and  now  or  lately  occupied  by  Robert  Forrester  senior,  Thomas 

'  M'Micken,  and  Robert  Forrester  junior,  then  and  now  or  lately  car- 

'  rying  on  business  there  as  drapers,  under  the  firm  of  Forresters  and 

'  Company,  you  the  said  Margaret  Grahame  did,  wickedly  and  feloni- 

'  ously,  falsely,  fraudulently,  and  wilfully,  represent  to  Thomas  Mor- 

'  ton,  then  and  now  or  lately  salesman  to  the  said  Forrester  and  Com- 

'  pany,  or  to  Thomas  M'Miken,  then  and  now  or  lately  partner  of  the 

'  said  firm,  or  to  some  other  person  to  the  prosecutor  unknown,  acting 

'  on  their  account,  that  you  had  been  sent  by  Mrs  Smith,  residing  at 

'  No.  163  West  George  Street,  in  or  near  Glasgow,  to  look  at,  for  her, 

'  some  plaids,  shawls,  and  ribbons,  or  similar  goods,  and  to  order  the 

'  same  to  be  sent  to  her,  at  No.  163  West  George  Street  aforesaid, 

'  for  inspection,  with  a  view  to  purchase ;  and  the  said  Thomas  Mor- 

'  ton  or  Thomas  M'Miken,  or  other  person  to  the  prosecutor  unknown, 

'  was  thereby,  or  by  some  similar  false  and  fraudulent  representation 


AND  CIRCUIT  DOUBTS  OP  JUSTICIARY.  249 

session  of  the  goods,  or  that  he  had  had,  from  the  begin-    No^^^s. 
ning  of  the  transaction,  a  distinct  intention  of  not  paying  Chishoim. 
for  them.     There  were  no  data,  from  which  it  could  be  High  court. 

July  9. 
'■ 1849. 


made  by  you  as  aforesaid,  imposed  upon  and  induced  to  send  to  Falsehood, 
No.  163  West  George  Street  aforesaid,  then  and  now  or  lately  oc-  ''*"  ' 
cupied  by  Isabella  Ewing  or  Smith,  widow  of  the  deceased  Archibald 
Smith  of  Jordanhill,  three,  or  thereby,  woollen  plaids,  one  woollen 
shawl,  and  thirty-two  yards,  or  thereby,  of  ribbon,  which  you  the 
said  Margaret  Grahame  received  and  appropriated  as  after  libelled  : 
Farther,  time  above  libelled,  at  or  near  the  house  situated  at  No. 
183  "West  George  Street  aforesaid,  you  the  said  Margaret  Grahame 
did,  wickedly  and  feloniously,  falsely,  fraudulently,  and  wilfully, 
represent  to  Ann  Maltman  or  Cecilia  Dawson,  both  then  and  now 
or  lately  servants  to,  and  residing  with,  the  said  Isabella  Ewing  or 
Smith,  that  a  parcel  containing  the  articles  last  above  libelled,  which 
was  then  in  the  said  house,  had  been  left  there  by  mistake,  and  that 
it  was  intended  for  some  other  person  whom  you  then  named,  but 
whose  name  is  to  the  prosecutor  unknown  ;  and  having  thereby,  or 
by  some  similar  false  and  fraudulent  representation,  imposed  upon 
the  said  Ann  Maltman  or  Cecilia  Dawson,  and  induced  her  to  deliver 
to  you  the  said  parcel  containing  the  articles  above  libelled,  or  part 
thereof,  you  did,  then  and  there,  wickedly  and  feloniously,  steal  and 
theftuously  away  take  the  said  parcel  containing  the  articles  last 
above  libelled,  or  part  thereof,  the  property,  or  in  the  lawful  posses- 
sion, of  the  said  Robert  Forrester  senior,  Thomas  M'Micken,  and 
Robert  Forrester  junior,  or  one  or  other  of  them,  or  in  the  lawful 
possession  of  the  said  Ann  Maltman  and  Cecilia  Dawson,  or  one  or 
other  of  them :  Or  otherwise,  time  and  place  last  above  libelled, 
you  the  said  Margaret  Grahame  did,  wickedly  and  feloniously,  steal 
and  theftuously  away  take,  a  parcel,  containing  the  articles  last 
above  libelled,  or  part  thereof,  the  property,  or  in  the  lawful  posses- 
sion, of  the  said  Robert  Forrester  senior,  Thomas  M'Micken,  and 
Robert  Forrester  junior,  or  one  or  other  of  them,  or  in  the  lawful 
possession  of  the  said  Ann  Maltman  and  Cecilia  Dawson,  or  one  or 
other  of  them  :  Likeas  (6.),  upon  the  20th  day  of  September  1847, 
or  one  or  other  of  the  days  of  that  month,  or  of  August  immediately 
preceding,  or  of  October  immediately  following,  within  or  near  the 
shop  situated  in  or  near  Buchanan  Street,  in  or  near  Glasgow,  then 
and  now  or  lately  occupied  by  Andrew  Ruiherglen,  bookseller,  and 
stationer  there,  you  the  said  Margaret  Grahame  did,  wickedly  and 
feloniously,  fasely,  fraudulently,  and  wilfully,  represent  to  the  said 
Andrew  Rntherglen,  or  to  Robert  Laird,  then  and  now  or  lately 
shopman  to  the  said  Andrew  Rutherglen,  that  you  had  been  sent  by 
your  master,  Mr  William  Corbet,  No.  25  Bath  Street,  in  or  near 


250 


CASES  BEFORE  THE  HIGH  COURT 


No.  38. 

James 

Chisholm. 

High  Court, 

July  9. 

1849. 

Falsehood, 
Fraud,  &c. 


inferred  that  he  had  committed  any  crime,  all  that  it 
amounted  to  being,  that  he  had  not  paid  a  civil  debt. 

The  Court  recommended  the  libel  to  be  amended,  by 
the  insertion  of  a  statement,  that  the  pursuer  had  entered 
upon  the  transaction  with  the  intention  of  not  paying 
for  the  goods,  if  the  facts  would  warrant  such  a  charge, 
and  intimated  that  otherwise  they  would  sustain  the  ob-; 
jection. 

The  Advocate-Depute  thereupon  withdrew  the  libel. 


Glasgow,  to  looli  at  some  Bibles,  and  order  the  same  to  be  sent  to 
him  at  No.  25  Bath  Street  aforesaid,  for  inspection,  with  a  view  to 
purchase  the  same ;  and  the  said  Andrew  Rutherglen  or  Robert 
Laird  was  thereby,  or  by  some  similar  false  and  fraudulent  repre- 
sentation made  by  you  as  aforesaid,  imposed  upon  and  induced  to  send 
to  No.  25  Bath  Street  aforesaid,  then  and  now  or  lately  occupied  by 
William  Corbet,  now  or  lately  powerloom  cloth-manufacturer,  six, 
or  thereby,  copies  of  the  Bible,  each  copy  consisting  of  two  volumes, 
or  thereby,  which  you  the  said  Margaret  Grahame  received  and  ap- 
propriated as  after  libelled :  Farther,  time  above  libelled,  at  or 
near  the  house  No.  25  Bath  Street  aforesaid,  you  the  said  Margaret 
Grahame  did,  wickedly  and  feloniously,  falsely,  fraudulently,  and 
wilfully,  represent  to  Ann  Syme  and  Christina  Stewart,  or  one  or 
other  of  them,  both  then  and  now  or  lately  servants  to  the  said  William 
Corbet,  or  in  the  said  house,  that  the  Bibles  above  libelled,  which 
were  then  in  the  said  house,  had  been  left  there  by  mistake,  and  that 
it  was  intended  for  some  person  in  Regent  Street,  or  elsewhere  in  or 
near  Glasgow,  to  the  prosecutor  unknown  ;  and  having  thereby,  or 
by  some  similar  false  and  fraudulent  representation,  imposed  upon 
the  said  Ann  Syme  and  Christina  Stewart,  or  onfr  or  other  of  them, 
and  induced  them,  or  one  or  other  of  them,  to  deliver  to  you  the 
Bibles  above  libelled,  or  part  thereof,  you  did,  then  and  there,  wick- 
edly and  feloniously,  steal  and  theftuously  away  take  the  Bibles 
above  libelled,  or  part  thereof,  the  property,  or  in  the  lawful  posses- 
sion, of  the  said  Andrew  Rutherglen,  or  in  the  lawful  possession  of 
the  said  Ann  Syme  and  Christina  Stewart,  or  one  or  other  of  them  : 
Or  OTHERWISE,  time  and  place  last  above  libelled,  you  the  said  Mar- 
garet Grahame  did,  wicked  and  feloniously,  steal  and  theftuously 
away  take  the  Bibles  above  libelled,  or  part  thereof,  the  property,  or 
in  the  lawful  possession,  of  the  said  Andrew  Rutherglen,  or  in  the 
lawful  possession  of  the  said  Ann  Syme  or  Christina  Stewart,  or  one 
or  other  of  them.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  251 


Present  as  before. 

The   pannel  was   again   qharged   on   the    following    No.  20 
amended  libel,  charging —  Chishoim. 

High  Court. 
Your  inteutioa  truly  being  all  along  fraudulently  to  appropriate  the       ig49_ ' 
said  potatoes  to  your  own  uses  and  purposes  when  obtained,  without  _,      ,     r 
making  payment  for  the  same  ;  and  all  this  or  part  thereof,  you  so  pre-  Fraud,  &o. 
vailed  on  the  said  James  Denny  to  do,  upon  your  false  and  fraudulent 
representation  and  promise  to  him,  which  you  never  at  any  time  in- 
tended to  fulfil,  that  you  would,  immediately  after  the  said  delivery  of 
the  said  potatoes,  pay  to  him,  for  behoof  of  the  said  George  Seton,  the 
foresaid  agreed-on  price  thereof,  which  you  wilfully,   wickedly,  and 
fraudulently  failed  to  do ;  and  you  did  appropriate  the  said  potatoes, 
or  part  thereof,  to  your  own  uses  and  purposes,  as  after  libelled. 

After  discussion,  the  Court  sustained  the  amendment 
of  the  libel,  it  being  framed  after  the  model  of  the 
case  of  Grahame,  Lord  Ivory,  however,  stating  that 
he  entertained  great  doubt  as  to  the  competency  of 
charging  what  was  substantially  one  act,  cumulatively  as 
two  distinct  crimes.  The  other  Judges  also  observed, 
that  although  not  incompetent,  the  more  seldom  this 
was  done  the  better. 

Thomson  then  objected  to  the  relevancy  of  the  charge 
of  theft,  in  respect  that  although  fraudulent  representa- 
tions were  charged  to  have  been  made  by  the  pannel, 
yet  a  regular  contract  of  sale  was  set  out  in  the  indict- 
ment, under  which  the  prisoner  had  obtained  possession 
of  the  goods,  consequently  there  had  been  a  voluntary 
transference  of  the  goods  to  him  from  the  former  owner. 
The  charge  of  theft  by  persons  appropriating  goods  al- 
ready in  their  own  possession  (as  servants,  porters,  hirers 
of  horses,  &c.)  had  been  held  relevant,  on  the  theory 
that  the  goods  were  still  constructively  in  the  possession 
of  their  real  owners,  for  whom  the  parties  accused  of 
stealing  them  were  trustees  or  custodiers.  Here  there 
was  no  room  for  any  such  theory,  as  the  actual  property 
in  the  goods  had  passed  under  a  regular  contract. 


252  CASES  BEFORE  THE  HIGH  COURT 

No.  38.  Deas. — The  property  must  be  held  not  to  have  been 
ChiXoto.  actually  transferred,  inasmuch  as  the  bargain,  as  stated 
High  Court,  in  the  indictment,  was  only  conditional,  on  payment 

J 849. '   being  made  simul  et  semel  with  the  delivery. 
Falsehood,       The  CouET,  after  consideration,  repelled  the  objection 
^'*"'^'*"- on  this  ground. 

The  charge  of  theft  having  been  withdrawn,  the  pri- 
soner pled  Guilty  to  the  charge  of  swindling. 

In  respect  of  which  judicial  confession,  the  pannel 
James  Chisholm  was  sentenced  to  be  imprisoned  for  the 
period  of  fifteen  months. 


Present, 
The  Lord  Justice-Clerk, 

July  25. 

Lords  Mackenzie  and  Cockburn. 

Her  Majesty's  Advocate — Maitland  Sol.-Gen. — Deaa  A.D. 

AGAINST 

Agnes  Chambers  or  M'Queen  and  Helen  Henderson — 
W.  G.  Dickson. 

Trial. — Circumstances  in  which,  on  occasion  of  the  illness  of  one 
pannel,  the  Court  continued  the  case  till  a  subsequent  day,  as  against 
both  herself  and  another  party  charged  as  an  accomplice. 

No.  39.       Agnes  Chambers  or  M'Queen  and  Helen  Hender- 
chambers  SON  Were  charged  with  Robbery ;  as  also  Theft : 

and  Helen 

!      In  so  PAR  AS,  on  the  morning  of  the  26th  day  of  June  1849,  or  on 

H^Sh  Court,  one  or  other  of  the  days  of  that  month,  or  of  May  immediately  pre- 
1 849. '    ceding,  or  of  the  bypast  part  of  July  immediately  following,  in  or  near 
Robbery  or  ^^^^  Horse  Close,  otherwise  called  Boyd's  Close,  in  or  near  Canon- 
Theft,      gate  aforesaid,  you  the  said  Agnes  Chambers  or  M'Queen  and  Helen 
Henderson  did,  both  and  each,  or  one  and  other  of  you,  wickedly  and 
feloniously,  attack  and  assault  Alexander  Wilkie,  a  cart  and  wheel 
Wright,  then  and  now  or  lately  residing  with  Angus  M'Donald,  a  gar- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  253 

dener,  then  and  now  or  lately  residing  at  or  near  Davidson's  Mains,  in     No.  39. 
or  near  the  parish  of  Cramond,  and  county  of  Edinburgh,  and  did  rjufi™™ 
seize  hold  of  him,  and  did  violently  push  or  force  hira  within  or  near  and  Helen 
to  the  said  close,  and  did  struggle  with  him,  and  did  tear  his  vest,  or  Henderson. 
part  thereof,  and  did  by  force  or  violence  take  from  his  pocket  or  per-  High  Court, 
son,  and  did  rob  hira  of,  one  shilling  and  sixpence,  or  thereby,  in  silver       [849. ' 
money,  and  a  penny,  or  thereby,  in  copper  money,  the  property,  or  in  ^TTT 
the  lawful  possession,  of  the  said  Alexander  Wilkie  :  Or  otherwise,     Theft, 
time  above  libelled,  in  or  near  White  Horse  Close,  otherwise  called 
Boyd's  Close,  aforesaid,  in  or  near  Canongate  aforesaid,  you  the  said 
Agnes  Chambers  or  M'Queen  and  Helen  Henderson  did,  both  and 
each,  or  one  or  other  of  you,  wickedly  and  feloniously,  steal  and  theft- 
uously  away  take,  from  or  near  the  pocket  or  person  of  the  said  Alex- 
ander Wilkie,  the  silver  and  copper  money  above  libelled,  or  part 
thereof,  the  property,  or  in  the  lawful  possession,  of  the  said  Alexan- 
der Wilkie. 

The  pannels  having  respectively  pleaded  not  guilty  to 
the  charges  preferred  against  them,  and  been  remitted 
to  the  knowledge  of  an  assize,  after  the  jury  had  been 
sworn,  and  when  the  examination  of  the  first  witness 
was  commencing,  the  pannel  M'Queen  was  taken  unwell, 
and  required  to  be  removed  from  Court.  The  police 
surgeon  having  been  directed  by  the  Court  to  examine 
her,  reported  on  oath,  that  although  sufficiently  recovered 
to  return  to  the  dock  without  injury  to  her  health,  she 
w^as  not  in  so  collected  a  state  as  to  be  able  to  suggest 
questions  to  her  counsel,  or  otherwise  to  defend  herself 
against  the  charge. 

Under  these  circumstances  the  Court  refused  to  allow 
the  trial  to  proceed  as  regarded  hej.  Some  difficulty 
was  thereupon  expressed  by  the  Crown  counsel  as  to  the 
effect  of  this  contingency  upon  the  case  of  the  other 
prisoner,  as  they  wished  both  to  be  tried  together :  in 
respect  of  which,  the  Lord  Justice-Clerk  said,  that  the 
Court  had  no  doubt  that  the  trial  might  be  delayed  in 
the  case  of  both  prisoners,  if  the  Crown  considered  it 
expedient  the  cases  should  not  be  separated. 

The  Solicitor-General  slated,  that  it  was  very  de- 
sirable that  the  pannels  should  be  tried  together  ;  where- 


254  CASES  BEFORE  THE  HIGH  COURT 

No.  39.    upon  the  Court  continued  the  diet  against  both  until  the 
Chtmbers  next  day,  and  the  jury  impannelled  were  discharged. 


and  Helen 
Henderson. 


Highconrt.     On  the  following  day  both  pannels  were  tried  before 
"^184^ ■   another  jury  from  the  same  list  of  assize,  and  both  con- 
i^iiii^r  dieted  of  robbery. 

Theft. 

In  respect  of  which  verdict  of  assize,  the  said  Agnes 
Chambers  or  M 'Queen  and  Helen  Henderson  were  sen- 
tenced to  be  transported  for  seven  years. 


Present, 
July  25.  The  Lord  Justice-Cleuk. 

1849. 

Lords  Mackenzie  and  Cockburn. 
Her  Majesty's  Advocate — T.  Maitland  Sol.-Gen. — Deas  A.D. 

AGAINST 

James  Hall,  John  Howie,  and  John  Stevenson — Pattison  and 

Burnett. 

1.  In  a  charge  of  Falsehood  and  Fraud,  particularly  the  fraudulently 
'  and  feloniously  obtaining  the  goods  of  others  upon  false  pretences 
'  and  appropriating  the  same,  without  paying,  or  intending  to  pay 
'  therefor  :'  Held,  that  it  was  not  necessary  to  allege  that  the  pannel 
assumed  any  false  character,  or  that  he  used  any  other  false  pretence 
than  that  of  undertakipg  to  make  a  cash  payment  of  the  price  of  the 
goods, '  he  fraudulently  and  feloniously  intending,  nevertheless,  that 
'  the  said  price  should  not  be  paid,  and  that  he  should  appropriate 
'  the  said  goods  to  his  own  uses  and  purposes,  without  payment 
'  being  made  therefor ;'  and  having  so  appropriated  them. 

2.  A  party  had  used,  to  a  very  small  extent,  the  firm  of  '  J.  Stevenson 
and  Co.,'  in  Glasgow,  where  he  had  attempted  to  carry  on  business  ; 
he  was  not  in  business  anywhere  else ;  he  fraudulently  adhibited  the 
signature  '  J.  Stevenson  and  Co.,'  as  acceptors  to  a  bill  for  £200, 
dated  at  Manchester,  in  order  that  the  bill  might  be  used  and  uttered 
as  a  bill  accepted  by  a  Manchester  firm,  and  the  bill  was  so  used 
and  uttered  ;  there  was  no  such  Manchester  firm  :  Held  to  be  a  for- 
gery. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  255 

James  Hall,  John  Howie,   and  John   Stevenson  ^  No.  49. 

James  Hall 

were  charged  on  criminal  letters,  That  albeit,  by  the  laws  &  othera. 
of  this  and  of  every  other  well-governed  realm,  Falsehood  ^f^^^^'^- 
and  Fraud,  particularly  the  fraudulently  and  feloniously     i849. 
obtaining  the  goods  of  others  upon  false  pretences,  and  |^'^^J"'°'|,' 
appropriating  the  same,  without  paying  or  intending  to 
pay  therefor ;  as  also.  Forgery ;  as  also,  the  wickedly  and 
feloniously  Using  and  Uttering,  as  genuine,  any  Forged 
Promissory-Note  or  other  Writing,  having  thereon  any 
forged  subscription,  knowing  the  same  to  be  forged,  are 
crimes  of  an  heinous  nature,  and  severely  punishable  : 

Yet  true  it  is  and  op  verity,  that  the  said  James  Hall  and  John 
Howie  are,  both  and  each,  or  one  or  other  of  them,  guilty  of  the  said 
crimes,  or  of  one  or  more  of  them ;  and  the  said  John  Stevenson  is 
guilty  of  the  said  crimes  of  forgery  and  uttering,  or  one  or  other  of 
them,  actors  or  actor,  or  art  and  part:  In  so  far  as  (1.),  the  said 
Jame&  Hall  having  formed  a  fraudulent  and  felonious  purpose  of  ob- 
taining the  goods  of  others  upon  false  pretences,  and  appropriating  the 
same  to  his  own  uses  and  purposes,  without  paying  or  intending  to  pay 
therefor,  did,  in  prosecution  of  the  said  fraudulent  and  felonious  pur- 
pose, on  or  about  the  23d  day  of  May  J  848,  call  at  the  sale-room  or 
premises  situated  in  or  near  Exchange  Square,  Glasgow,  then  and  now 
or  lately  occupied  by  Lewis  Park  and  Charles  Park,  or  one  or  other 
of  them,  carrying  on  business  under  the  firm  of  Lewis  and  Charles 
Park,  sewed  muslin  manufacturers  there,  and  did  request  the  said 
Lewis  Park  and  Charles  Park,  or  one  or  other  of  them,  to  sell  goods 
to  the  amount  of  £300  sterling,  or  other  considerable  amount,  to  the 
order  of  him  the  said  James  Hall,  or  of  the  mercantile  company  or  firm 
of  Henry  Hall  and  Company,  for  whom  the  said  James  Hall  repre- 
sented that  he  was  acting,  and  did  request  the  said  Lewis  Park  and 
Charles  Park,  or  one  or  other  of  them,  to  send  the  said  goods  to  certain 
premises  in  or  near  Buchanan  Court,  Buchanan  Street  of  Glasgow,  as 
being  the  premises  occupied  by  him,  or  by  the  said  Henry  Hall  and 
Company ;  and  in  order  to  induce  the  said  Lewis  Park  and  Charles 
Park,  or  one  or  other  of  them,  to  sell  the  said  goods,  and  to  send  the 
same  to  the  premises  in  Buchanan  Court  as  aforesaid,  the  said  James 
Hall  did,  on  or  about  the  23d  day  of  May  1848,  or  on  one  or  other  of 
the  days  of  the  said  month  of  May,  or  of  April  immediately  preceding, 
or  of  June  immediately  following,  and  in  or  near  the  sale-room  or  pre- 
mises situated  in  or  near  Exchange  Square  aforesaid,  falsely,  fraudu- 
lently, and  feloniously  pretend  and  agree  with  the  said  Lewis  Park 
and  Charles  Park,  or  one  or  other  of  them,  or  cause  it  to  be  understood 
and  relied  on  as  between  him  and  them,  or  one  or  other  of  them,  that 


256  CASES  BEFORE  THE  HIGH  COURT 

No.  iO.     the  price  of  the  said  goods  was  to  be  paid  for  either  as  in  cash  transac- 
James  Hall  jj^^^    ^j.  ^^  aelivery  of  the  goods,  he  the  said  James  Hall  fraudulently 

— and  feloniously  intending  nevertheless  that  the  said  price  eboulrt  not 

^jf]^2si^-  be  paid,  and  that  he  should  appropriate  the  said  goods  to  his  own  uses 
1849.  and  purposes,  without  payment  being  made  therefor;  and  the  said 
Falsehood,  Lewis  Park  and  Charles  Park,  or  one  or  other  of  them,  being  induced 
Fraud,  &c.  i,y  ^he  said  false  and  fraudulent  pretence,  did  then  and  there  sell  goods 
to  the  said  James  Hall,  consisting  of  sewed  collars  or  similar  goods,  to 
the  value  of  £93,  12s.  sterling,  or  thereby,  conform  to  invoice  dated 
23d  May  3  848,  contained  in  an  inventory  hereunto  annexed,  and  did, 
on  the  same  day,  or  within  one  or  two  days  thereafter,  send  the  said 
goods  to  the  premises  in  or  near  Buchanan  Court  aforesaid,  to  the  ad- 
dress of  the  said  Henry  Hall  and  Company,  or  of  the  said  James  Hall ; 
and  the  said  James  Hall  feloniously  appropriated  the  said  goods  to  his 
own  uses  and  purposes  ;  and  no  part  of  the  price  of  the  said  goods  has 
been  paid  to  the  said  Lewis  Park  and  Charles  Park,  or  either  of  them ; 
and  the  said  Lewis  Park  and  Charles  Park,  or  one  or  other  of  them, 
have  been  thereby  falsely  and  feloniously  cozened  and  defrauded  by 
the  said  James  Hall :  Likeas  (2.),  the  said  James  Hall  and  John 
Howie  having,  both  and  each,  or  one  or  other  of  them,  formed  a  frau- 
dulent and  felonious  purpose  of  obtaining  the  goods  of  others  upon 
false  pretences,  and  appropriating  the  same  to  their  own  uses  and  pur- 
poses, without  paying  or  intending  to  pay  therefor,  did,  both  and  each, 
or  one  or  other  of  them,  in  prosecution  of  said  fraudulent  and  felonious 
purpose,  on  various  occasions,  in  the  months  of  November  and  Decem- 
ber 1848,  call  at  the  premises  or  warehouse  situated  in  or  near  Priory 
Lane,  of  Dunfermline,  then  and  now  or  lately  occupied  by  Erskine 
Beveridge,  then  and  now  or  lately  manufacturer  in  Dunfermline,  and 
give  orders,  and  did  also  transmit  written  orders,  to  the  said  Erskine 
Beveridge,  for  goods  to  be  sent  to  them,  the  said  James  Hall  and  John 
Howie,  or  one  or  other  of  them,  at  Glasgow,  to  the  address  of  J.  and 
J.  Hall,  or  J.  and  J.  Hall  and  Co.,  or  to  some  similar  address ;  and  in 
order  to  induce  the  said  Erskine  Beveridge  to  send  his  goods  to  them, 
or  one  or  other  of  them  as  aforesaid,  the  said  James  Hall,  and  John 
Howie,  as  acting  with  or  on  behalf  of  the  said  James  Hall,  on  various 
occasions,  in  the  months  of  November  and  December  foresaid,  more 
particularly,  the  said  James  Hall,  on  or  about  both  and  each  or  one  or 
other  of  the  9th  day  of  November  and  the  11th  day  of  December  fore- 
said, and  the  said  John  Howie,  on  or  about  both  and  each  or  one  or 
other  of  the  30th  day  of  November  and  the  20th  day  of  December 
foresaid,  or  the  said  James  Hall  and  John  Howie  respectively,  on  other 
days  in  the  said  months  of  November  and  December,  the  particular 
days  being  to  the  prosecutor  unknown,  and  at  or  near  the  premises  or 
warehouse  aforesaid,  occupied  by  the  said  Erskine  Beveridge,  and  at 
or  near  the  inn  commonly  called  Hutton's  Inn,  situated  in  or  near 
Bridge  Street  of  Dunfermline,  or  at  one  or  other  of  said  places,  did, 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  257 

both  and  each,  or  one  or  other  of  them,  falsely,  fraudulently,  and  felo-     No.  40.^^^ 
niously,  represent  and  pretend  to  the  said  Erskine  Beveridge  and  to   ^  others. 
Henry  Meldrum,  then  and  now  or  lately  salesman  to  the  said  Erskine  ^J^T^^^^ 
Beveridge,  or  to  one  or  other  of  them,  that  the  said  James  Hall  was    juiy  25. 
one  of  the  Halls  of  New  York,  or  was  Mr  Hall  of  New  York,  in  the       ^^^^- 
United  States  of  America ;  and  that  he  was  a  partner  of,  or  agent  for,  Falsehood, 
three  mercantile  firms  or  companies,  one  at  New  York  aforesaid,  one    ™"'' 
at  Manchester,  and  one  at  Glasgow,  whereas  it  was  well  known  to 
both  and  each,  or  chie  or  other  of  the  said  James  Hall  and  John  Howie, 
that  the  said  James  Hall  was  not  one  of  the  Halls  of  New  York,  or 
Mr  Hall  of  New  York  aforesaid,  and  that  he  was  not  a  partner  of,  or 
agent  for,  three  mercantile  firms  or  companies,  one  at  New  York,  one 
at  Manchester,  and  one  at  Glasgow  aforesaid ;  and  in  order,  farther, 
to  induce  the  said  Erskine  Beveridge  and  Henry  Meldrum,  or  one  or 
other  of  them,  to  send  such  goods  as  they  the  said  James  Hall  and 
John  Howie,  or  one  or  other  of  them,  should  order,  the  said  James 
Hall  and  John  Howie  did,  both  and  each,  or  one  or  other  of  them, 
always  pretend  and  agree  with  the  said  Erskine  Beveridge  and  Henry 
Meldrum,  or  one  or  other  of  them,  or  cause  it  to  be  understood  and 
relied  on  as  between  them  the  said  James  Hall  and  John  Howie,  or 
one  or  other  of  them,  on  the  one  part,  and  the  said  Erskine  Beveridge 
and  Henry  Meldrum,  or  one  or  other  of  them,  on  the  other  part,  that 
the  price  of  the  said  goods  when  sent  was  to  be  paid  for  either  as  in 
cash  transactions,  or  on  delivery  of  the  goods ;  which  said  last-men- 
tioned pretence,  on  the  part  of  the  said  James  Hall  and  John  Howie, 
or  one  or  other  of  them,  was  likewise  false  and  fraudulent,  they  felo- 
niously intending,  nevertheless,  that  the  price  of  said  goods  shonld  not 
be  paid,  and  that  the  said  goods  should  be  appropriated  to  the  uses 
and  purposes  of  them,  or  one  or  other  of  them,  without  payment  being 
made  therefor,  or,  at  least,  without  payment  being  made  except  for  a 
comparatively  small  amount  of  said  goods  at  the  commencement  of 
their  dealings  with  the  said  Erskine  Beveridge  and  Henry  Meldrum, 
or  one  or  other  of  them  ;  and  by  the  foresaid  or  similar  false  and  frau- 
dulent representations  and  pretences,  or  part  thereof,  the  said  Erskine 
Beveridge  and  Henry  Meldrum,  or  one  or  other  of  them,  were  induced 
to  despatch  and  send,  and  did  despatch  and  send,  linen  or  other  goods 
to  Glasgow,  to  the  said  James  Hall  and  John  Howie,  or  one  or  other 
of  them  as  aforesaid,  to  the  address  aforesaid,  on  various  occasions  in 
the  month  of  December  aforesaid  ;  more  particularly  (1st),  on  or  about 
the  12th  day  of  December  foresaid,  the  said  Erskine  Beveridge  and 
Henry  Meldrum,  or  one  or  other  of  them,  so  despatched  from  Dun- 
fermline and  sent  to  Glasgow,  to  the  said  James  Hall  and  John  Howie, 
or  one  or  other  of  them,  linen  or  other  goods,  conform  to  invoice  of 
said  last-mentioned  date,  contained  in  Inventory  hereunto  annexed, 
and  amounting  in  value  to  the  sum  of  £42  :  3  :  8^  sterling,  or  thereby ; 
(2d),  on  or  about  the  13th  day  of  December  foresaid,  the  said  Erskine 
Beveridge  and  Henry  Meldrum,  or  one  or  other  of  them,  so  despatched 


258  CASES  BEFORE  THE  HIGH  COURT 

No.  40.     from  Dunfermline  and  sent  to  Glasgow,  to  the  said  James  Hall  and 
"'ft'oTh^s!'  John  Howie,  or  one  or  other  of  them,  linen  or  other  goods,  conform  t& 

-: invoice  of  said  last-mentioned  date,  contained  in  Inventory  hereunto 

July  26^.  '  annexed,  and  amounting  in  value  to  the  sum  of  £64  :  0  :  1  sterling,  or 

}^^"_    thereby;  (3d),  on  or  about  the  21st  day  of  December  foresaid,  the  said 

Falsehood,  Erskine  Beveridge  and  Henry  Meldrum,  or  one  or  other  of  them,  so 
Fraud,  &c.  despatched  from  Dunfermline  and  sent  to  Glasgow  to  the  said  James 
Hall  and  John  Howie,  or  one  or  other  of  them,  linen  or  other  goods, 
conform  to  invoice  of  said  last -mentioned  date,  contained  in  Inventory 
hereunto  annexed,  and  amounting  in  value  to  the  sum  of  £64  :  15  :  2 
sterling,  or  thereby ;  and  (4th),  on  or  about  the  27th  day  of  December 
foresaid,  the  said  Erskine  Beveridge  and  Henry  Meldrum,  or  one  or 
other  of  them,  so  despatched  from  Dunfermline  and  sent  to  Glasgow 
to  the  said  James  Hall  and  John  Howie,  or  one  or  other  of  them,  linen 
or  other  goods,  conform  to  invoice  of  said  last-mentioned  date,  contained 
in  Inventory  hereunto  annexed,  amounting  in  value  to  the  sum  of 
£22  :  5  :  11  sterling,  or  thereby  ;  all  which  foresaid  goods  particularly 
above  specified,  or  part  thereof,  were  received  in  or  near  Glasgow  by. 
the  said  James  Hall  and  John  Howie,  or  one  or  other  of  them,  and 
were  appropriated  by  them,  or  one  or  other  of  them,  to  their  own  uses 
and  purposes  ;  and  no  part  of  the  price  of  the  foresaid  goods,  particu- 
larly above  specified,  has  been  paid  to  the  said  Erskine  Beveridge  or 
Henry  Meldrum  ;  and  the  said  Erskine  Beveridge  has  been  thereby 
falsely  and  feloniously  cozened  and  defrauded  by  the  said  James  Hall 
and  John  Howie,  or  one  or  other  of  them  :  Likeas  (3.),  in  order  far- 
ther to  deceive  the  said  Erskine  Beveridge,  the  said  James  Hall  and 
John  Howie,  along  with  the  said  John  Stevenson,  whose  estates  bad 
been  sequestrated  under  the  Bankrupt  Act,  2d  and  3d  Vict.,  c.  41,  on 
or  about  the  16th  December  184.9,  and  who  was  still  undischarged, 
and  was,  time  after  libelled,  in  the  employment  of  the  said  James 
Hall  as  his  ofiice-keeper,  or  was  otherwise  connected  with  th» 
said  James  Hall,  or  one  or  more  of  them  the  said  James  Hall,  John 
Howie,  and  John  Stevenson,  did,  on  the  1st  day  of  January  1849, 
or  on  one  or  other  of  the  days  of  that  month,  or  of  December  imme- 
diately preceding,  or  of  February  immediately  following,  and  in  or 
near  the  office  situated  in  or  near'  Brunswick  Street,  in  or  near  Glas- 
gow, then  and  now  or  lately  occupied  by  Alexander  Dick  junior, 
writer  in  Glasgow,  or  at  some  other  place  in  or  near  Glasgow,  to  the 
prosecutor  unknown,  write,  or  cause  or  procure  to  be  written,  a  pro- 
missory note  in  the  following  or  similar  terms  : — 

'  £200  „  0  „  0.  '  Manchester  !»'  Jan?  1849. 

'  Two  months  after  date  we  promise  to  pay  to  order  of  Mess"  J.  &  J. 
'  Hall  &  Co  two  hundred  pounds  value  received 
'  Payable  at  Mess"  Smith,  -s 
'  Payne  &  C  ( 


Bankers, 
'  London,' 


i 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  259 

and  time  last  above  libelled,  as  also  place  last  above  libelled,  or  at  or     j^q_  ^q 
near  the  premises  situated  in  or  near  Saint  Vincent  Place,  in  or  near  James  Hall 

Glasgow,  then  occupied  by  the  said  James  Hall,  or  by  the  mercantile ^'^^" 

firm  or  company  of  J.  &  J.  Hall  &  Co.,  or  at  some  other  place  in  or  High  Court, 
near  Glasgow  to  the  prosecutor  unknown,  the  subscription  '  J.  Steven-  \849. ' 
son  &  Co.,'  was  wickedly  and  feloniously  adhibited  by  the  said  John  „  ,  . — T" 
Stevenson  to  the  said  promissory-note,  at  the  desire  or  with  the  con-  Fraud,  &c. 
currence  of  both  and  each,  or  one  or  other  of  the  said  James  Hall  and 
John  Howie ;  and  the  said  subscription  was  false  and  forged,  being 
intended  by  all  and  each,  or  one  or  more  of  the  said  James  Hall,  John 
Howie,  and  John  Stevenson,  to  pass  for,  and  to  be  received  as,-  the 
genuine  subscription  of  a  mercantile  firm  or  company  in  Manchester, 
carrying  on  business  there  under  the  firm  or  designation  of  J.  Steven- 
son &  Co.,  whereas  there  was  no  such  mercantile  firm  or  company  in 
Manchester,  carrying  on  business  there,  and  the  foresaid  false  and 
forged  subscription  was  the  subscription  of  a  purely  fictitious  mercan- 
tile firm  or  company ;  or,  at  least,  if  there  was  any  such  firm  or  mer- 
cantile company  in  Manchester  carrying  on  business  there,  neither  the 
said  James  Hall,  John  Howie,  nor  John  Stevenson  had  power  or  autho- 
rity to  use  or  adhibit  the  signature  or  subscription  of  any  such  mercan- 
tile firm  or  company :  Likbas  (4.),  time  and  place  last  above  libelled, 
the  said  James  Hall,  John  Howie,  and  John  Stevenson,  all  and  each, 
or  one  or  more  of  them,  having  caused  or  procured  tiie  said  false  and 
forged  promissory-note,  having  thereon  the  said  forged  subscription,  to 
be  indorsed  by  one  or  other  of  them  the  said  James  Hall,  John  Howie, 
and  John  Stevenson,  or  by  some  other  person  to  the  prosecutor  un- 
known, in  the  following  or  similar  terms,  '  Pay  to  order  of  E.  Beve- 
'  ridge  Esq'«,  J.  &  J.  Hall  &  Co'  upon  the  false  pretence  of  the  same 
being  a  genuine  obligation,  available  to  the  said  Erskine  Beveridge, 
for  the  debt  due  to  him  in  respect  of  the  goods  obtained  from  him  as 
aforesaid ;  and  thereafter,  the  said  James  Hall,  John  Howie,  and  John 
Stevenson,  all  and  each,  or  one  or  more  of  them,  having  caused  or  pro- 
cured the  same  to  be  inclosed  within  a  letter,  bearing  to  be  dated 
'  Jany  2'!,  1849,'  and  to  be  subscribed  with  the  signature  '  J.  &  J.  Hall 
'  &  Co.'  and  to  be  addressed  to  the  foresaid  Erskine  Beveridge,  the 
said  James  Hall,  John  Howie,  and  John  Stevenson,  did,  all  and  each, 
or  one  or  more  of  them,  upon  the  2d  day  of  January  1849,  or  on  one 
or  other  of  the  days  of  that  month,  or  of  December  immediately  pre- 
ceding, or  of  February  immediately  following,  and  at  or  near  the  post- 
office  situated  in  or  near  Glassford  Street  of  Glasgow,  or  at  or  near  one 
or  other  of  the  receiving-houses  in  or  near  Glasgow  where  letters  are 
received  or  posted  for  the  said  post-ofiBce,  the  particular  receiving- 
house  being  to  the  prosecutor  unknown,  or  at  or  near  some  other  post- 
office  in  Scotland  to  the  prosecutor  unknown,  wickedly  and  feloniously, 
use  and  utter  as  genuine  the  said  false  and  forged  promissory-note, 
having  thereon  the  said  forged  subscription,  they  well  knowing  the 


260  CASES  BEFORE  THE  HIGH  COURT 

No.  40.     same  to  be  forged,  by  putting  the  foresaid  letter,  or  causing  or  procur- 
"ft'oth^^"  ing  some  person  to  the  prosecutor  unknown  to  put  the  foresaid  letter, 

'-  containing  the  said  false  and  forged  promissory-note,  having  thereon 

July  25!  '  ^^^  ^^^^  forged  subscription,  into  one  or  other  of  the  post-offices  or 
1848.      receiving-houses  aforesaid,  the  particular  post-office  or  receiving-house 
Falsehood,  being  to  the  prosecutor  unknown,  in  order  that  the  said  false  and  forged 
Fraud,  &e.  promissory-note,  having  thereon  the  said  forged  subscription,  should 
be  transmitted  to  the  said  Erskine  Beveridge,  and  be  received  by  him 
as  genuine ;  and  the  same  was  accordingly  so  received  by  him  in  or 
near  Dunfermline  aforesaid,  on  or  about  the  3d  day  of  January  afore- 
said. 

Pattison  objected  to  the  relevancy  of  the  first  charge 
of  falsehood  and  fraud.  There  was  no  statement  in  the 
minor  that  there  was  not  a  firm  of  the  style  of  Hall  and 
Co.,  nor  any  equivalent  allegation  that  the  pannel  Hall 
had  assumed  a  false  name,  character,  or  errand.  Some 
such  false  pretence  was  requisite  to  constitute  the  oiFence 
libelled.  (Hume,  vol.  i.,  p.  J  72.)  Accordingly,  in  all 
previous  cases,  some  false  pretence  had  been  held  out, 
such  as  keeping  a  shop  or  otherwise,  but  this  charge  was 
totally  destitute  of  any  such  allegation. 

The  Lord  Justice-Cleek. — What  was  found  in  Hall's 
case  in  1788  ?     (Hume,  vol.  i.,  p.  173.) 

Pattison. — In  Hall's  case  a  shop  was  hired,  and  the 
false  pretence  of  being  a  dealer  was  kept  up. 

Lord  Cockburn. — It  is  not  going  into  a  shop  and 
buying  goods  without  paying  for  them  that  constitutes 
the  crime ;  that  it  is  often  done  innocently,  for  a  man 
may  be  unable  to  pay.  But  the  crime  here  is  buying 
goods,  and  procuring  delivery,  with  the  intention  of  not 
paying  for  them  at  the  time.  It  was  the  alleged  dis- 
honest intent  charged  which  constituted  the  offence,  and 
that,  if  proved,  was  enough. 

Lord  Mackenzie  concurred. 

The  Lord  Justice-Clerk. — ^There  is  no  doubt  as  to 
the  relevancy  of  the  charge.  It  was  long  ago  settled  in 
Hall's  case,  which  was  argued  on  informations,  and  has 
been  the  rule  ever  since. 

The  objection  was  repelled. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  261 

It  appeared  in  evidence  that  the  bill  libelled  on  was    No.  4o. 

,  1111  in         James  Hall 

uttered  by  the  pannels,  and  that  there  was  no  such  firm  &  others. 
in  Manchester  as  John  Stevenson  &  Co.  Highc&urt. 

July  25. 

The  Lord  Justice-Clerk,  in  summing  up,  told  the  i849. 
Jury,  that  it  was  enough  to  constitute  the  crime  of  for- 11^'^''!"'°'^' 
gery,  that  the  pannel  falsely  represented  himself  in  his 
signature  to  a  bill,  as  carrying  on  business  as  a  member  of 
a  firm  in  another  and  distant  place  from  the  one  where 
he  uttered  the  bill.  Any  person  taking  a  bill  signed 
'  J.  Stevenson  &  Co.,  Manchester,'  would  infer  the  ex- 
istence of  such  a  firm  there,  and  consequently  suppose 
himself  possessed  of  double  security. 

The  Jury  found  the  pannels  guilty. 

In  respect  of  which  verdict  of  assize,  the  pannels  Hall 
and  Howie  were  sentenced  to  be  transported  for  ten 
years,  and  the  pannel  Stevenson  for  seven  years. 


WEST    CIRCUIT. 

Autumn- 1849. 
GLASGOW. 

Present, 

Sept.  IS. 
Lords  Mackenzie  and  Ivory.  '^^'" 

Her  Majesty's  Advocate — J.  M.  Bell  A.D, — Cleghorn. 

AGAINST 

Alexander  Feqan  and  Elizabeth  M'Kbnzie  ob  Hyde 

Mackonochie.  No.  41. 

Alexander 
Fegan  and 

Husband   and    Wipe — Evidence — Forgery. —  Circumstances    in  Elizabeth 
which  the  question  was  raised,  but  not  decided,  whether  a  husband  ^*™f  ® 

,  ,  or  xivuSa 

is  admissible  as  a  witness  against  his  wife,  accused  of  forging  his 
name. 


gow. 
Sept.  16. 
1849. 


Alexander  Fegan  and    Elizabeth    M'Kenzie  or  Forgery. 


Forgery. 


262  CASKS  BEFORE  THE  HIGH  COURT 

No.  41.  Hyde,  were  charged  with  Forgery ;  as  also,  the  Using 
Feg^^nl  and  uttering  as  genuine  a  forged  bank  order  or  cheque 
mienz*  or  other  writing,  for  payment  of  money,  having  thereon 
orHyde^ a  forged  subscription,  knowing  the  same  to  be  forged : 

Glasgow. 

^?849.^"  In  so  par  as  (1.),  upon  one  or  other  of  the  days  of  the  month  of 
"  May  1 849,  the  particular  day  being  to  the  prosecutor  unknown,  or  of 
the  month  of  April  immediately  preeeding,  or  of  June  immediately 
following,  in  or  near  the  house  situated  in  or  near  Spoutmouth,  Gal- 
lowgate  Street  of  Glasgow,  then  and  now  or  lately  occupied  by  Fran- 
cis Hyde,  now  or  lately  labouring  contractor,  and  now  or  lately  rer 
siding  there,  and  by  yon  the  said  Elizabeth  M'Kenzie  or  Hyde,  wife 
of  the  said  Francis  Hyde,  or  one  or  other  of  you  or  at  some  other 
place  in  or  near  Glasgow  to  the  prosecutor  unknown,  you  the  said 
Alexander  Fegan  and  Elizabeth  M'Kenzie  or  Hyde  did,  both  and 
each,  or  one  or  other  of  you,  wickedly  and  feloniously,  write,  or  cause 
or  procure  to  be  written,  a  bank  order  or  cheque,  or  other  writing,  in 
the  following  or  similar  terms  :~ 
'  £16  :  10/3 

'  Pay  to  the  Bearer  Eliza  Hyde  the  sum  of  Sixteen  pound  ten 
'  shillings  on  producing  my  deposit  Book  No  59306. 
'  To  the  Managers  "J 
'  of  the  Glasgow  V 
'  Savings  Bank.'  J 
and  you  did,  then  and  there,  both  and  each,  or  one  and  other  of  you, 
wickedly  and  feloniously,  forge  and  adhibit,  or  cause  or  procure  to  be 
forged  and  adhibited,  to  said  bank  order  or  cheque,  or  other  writing, 
the  words  or  subscription  '  Francis  Hide,'  intending  the  same  to  pass 
for,  and  be  received  as,  the  genuine  subscription  of  the  said  Francis 
Hyde  :  Farther,  upon  the  30th  day  of  May  1849,  or  on  one  or  other 
of  the  days  of  that  month,  or  of  April  immediately  preceding,  or  of 
June  immediately  following,  in  or  near  the  house  or  premises  situated 
in  or  near  Hutcheson  Street  of  Glasgow,  then  and  now  or  lately  occu- 
pied as  a  banking-office  by  the  National  Security  Savings  Bank  of 
Glasgow,  or  by  James  Black  senior,  now  or  lately  manufacturer  in 
Glasgow,  William  Brown,  now  or  lately  merchant  in  Glasgow,  and 
David  Hope,  now  or  lately  merchant  in  Glasgow,  and  others,  or  one 
or  more  of  them,  trustees  and  managers  of  the  said  National  Security 
Savings  Bank  of  Glasgow,  or  by  Donald  Smith,  now  or  lately  mana- 
ger of  the  Western  Bank  of  Scotland,  treasurer  of  the  Savings  Bank 
foresaid,  Eobert  Watson,  now  or  lately  actuary  of  the  Savings  Bank 
foresaid,  and  William  Meikle,  now  or  lately  accountant  or  actuary  of 
the  Savings  Bank  foresaid,  or  one  or  more  of  them,  you  the  said  Alex- 
ander Fegan  and  Elizabeth  M'Kenzie  or  Hyde  did,  both  and  each,  or 
one  or  other  of  you,  wickedly  and  feloniously,  use  and  utter,  as  genu- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  263 

'me,  the  said  forged  bank  order  or  cheque,  or  other  writing,  having     No.  41. 
thereon  the  said  forged  subscription,  you  knowing  the  same  to  be  Fegan°an^ 
forged,  by  then  and  there  delivering  the  same,  or  causing  or  procuring  Elizabeth 
the  same  to  be  delivered,  to  John  Thomson,  now  or  lately  clerk  in  the  ^Hy^g'^ 

said  National  Security  Savings  Bank,  and  now  or  lately  residing  in 

Abbotsford  Place,  Laurieston,  in  or  near  Glasgow,  and  William  geptflS.' 
Meikle,  now  or  lately  accountant  or  actuary  in  the  Savings  Bank  '849. 
aforesaid,  and  now  or  lately  residing  in  Grafton  Street  of  Glasgow,  or  Forgery, 
one  or  other  of  them,  or  to  some  other  officer  of  the  said  Savings 
Bank  to  the  prosecutor  unknown,  for  the  purpose  of  receiving  the 
amount  of  money  contained  in  the  said  bank  order  or  cheque,  or  other 
writing,  which  you  accordingly  did  receive,  and  applied  to  your  own 
uses  and  purposes  :  Likeas  (2.),  upon  one  or  other  of  the  days  of  the 
month  of  May  1849,  or  of  the  month  of  April  immediately  preceding, 
or  of  June  immediately  following,  the  particular  day  being  to  the 
prosecutor  unknown,  in  or  near  the  house  situated  in  or  near  Spout- 
month  aforesaid,  or  at  some  other  place  in  or  near  Glasgow  to  the 
prosecutor  unknown,  you  the  said  Alexander  Fegan  and  Elizabeth 
M'Kenzie  or  Hyde  did,  both  and  each,  or  one  or  other  of  you,  wicked- 
ly and  feloniously,  write,  or  cause  or  procure  to  be  written,  a  bank 
order  or  cheque,  or  other  writing,  in  the  following  or  similar  terms  : — ■ 
'  £3  :  6s/6d  Pay  to  the  Bearer  Eliza  Hyde  three  pounds  six  shillings 
'  and  sixpence,  with  enterest  on  producing  ray  deposit  Book  N°  59306 
'  to  the  Managers  of  the  Glasgow  Savings  Bank,' 
and  you  did,  then  and  there,  both  and  each,  or  one  or  other  of  you, 
wickedly  and  feloniously,  forge  and  adhibit,  or  cause  or  procure  to  be 
forged  and  adhibited,  to  said  bank  order  or  cheque,  or  other  writing, 
the  words  or  subscription  '  Frances  Hyde,'  intending  the  same  to  pass 
for,  and  be  received  as,  the  genuine  subscription  of  the  said  Francis 
Hyde  :  Farther,  upon  the  1st  day  of  June  1849,  or  on  one  or  other 
of  the  days  of  that  month,  or  of  May  immediately  preceding,  or  of 
July  immediately  following,  in  or  near  the  house  or  premises  situated 
in  or  near  Hutcheson  Street  aforesaid,  then  and  now  or  lately  occu- 
pied as  a  banking-office  by  the  said  National  Security  Savings  Bank 
of  Glasgow,  or  by  the  foresaid  James  Black  senior,  William  Brown, 
and  David  Hope,  atd  others,  or  one  or  more  of  them,  as  trustees 
and  managers  foresaid,  or  by  the  foresaid  Donald  Smith,  Robert 
Watson,  and  William  Meikle,  or  one  or  more  of  them,  you  the  said 
Alexander  Fegan  and  Elizabeth  M'Kenzie  or  Hyde  did,  both  and 
each,  or  one  or  other  of  you,  wickedly  and  feloniously,  use  and  utter, 
as  genuine,  the  said  forged  bank  order  or  cheque,  or  other  writing, 
last  above  libelled,  having  thereon  the  said  forged  subscription,  you 
knowing  the  same  to  be  forged,  by  then  and  there  delivering  the  same, 
or  causing  or  procuring  the  same  to  be  delivered,  as  genuine,  to  the 
said  John  Thomson  and  to  the  said  William  Meikle,  or  to  one  or 
other  of  them,  or  to  some  other  officer  of  the  said  Savings  Bank  to  the 

S 


264  CASES  BEFORE  THE  HIGH  COURT 

No.  41.  prosecutor  unknown,  for  the  purpose  of  receiving  the  amount  of  money 
Fe^arTand  contained  in  the  said  bank  order  or  cheque,  or  other  writing,  which 
Elizabeth   you  accordingly  did  receive,   and  applied  to  your  own  uses  and 

siptfis'.       The  diet  having  been  called,  the  first  witness  adduced 
'^*®'     was  Francis  Hyde,  to  whose  admissibility  it  was  objected, 


Forgery.  ^^^^  being  the  husband  of  one  of  the  pannels  at  the  bar, 
he  could  not  be  examined. 

It  was  answered,  that  as  the  husband  was  the  party 
injured,  he  was  necessarily  admissible,  and  that  other- 
wise, the  forgeries  of  a  husband's  name  by  a  wife  would 
go  unpunished. 

The  Court  intimated  that  the  point  was  of  sufficient 
importance  to  make  it  desirable,  if  possible,  that  they 
should  not  be  pressed  to  a  decision  of  the  question,  at 
a  time  when  it  had  emerged  suddenly  during  the  pro- 
gress of  a  Circuit. 

In  these  circumstances,  and  as  the  male  pannel  was 
the  principal  object  of  the  prosecution,  the  Advocate- 
Depute  gave  up  the  case  against  the  female  pannel. 

The  Jury  accordingly  returned  a  verdict  of  Not 
Guilty  against  the  female  prisoner,  who  was  dismissed 
from  the  bar. 

The  case  thereafter  proceeded  against  the  male  pan- 
nel, who  was  convicted,  and  sentenced  to  transporta- 
tion for  the  period  of  fourteen  years. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  266 


Present, 

Sept.  17. 
Lord  Mackenzie.  1849. 


Jane  Wyher  and  Others,  Appellants — Broun. 


"William  Hbndeib,  Respondent —  W.  E.  Aytoun. 

Appeal — Competency. — Held,  that  where  a  suit  ad  factum  prestan- 
dum,  concluded  alternatively  for  payment  of  a  less  sum  than  £25, 
that  appeal  to  the  Circuit  Court  was  competent. 

This  was  an  Appeal  against   the  judgment   of  the    No.  42. 
Sheriff-substitute  of  Airdrie,  refusing  to  allow  a  proof  others^". 
under  a  petition  at  the  instance  of  the  appellants,  craving  ^°°'^"^' 
restitution   of  certain  articles   of  household   furniture  feTu 
which  had  been  poinded  by  the  respondent,  and  which  it     ^8^9. 
was  alleged  belonged,  not  to  his  debtor,  George  Wyher,    Appeal. 
husband  of  one  of  the  appellants,  but  to  her  son  by  a  for- 
mer marriage. 

The  articles  in  question  had  been  part  of  the  goods  in 
communion  in  the  first  marriage,  and,  on  second  marriage, 
Mrs  Wyher  had  removed  with  her  son  and  her  said  fur- 
niture to  her  second  husband's  house.  The  poinding 
proceeded  on  the  ground  that  the  furniture  passed 
under  the  jus  mariti  of  her  second  husband,  and  was 
attempted  to  be  set  aside  on  the  ground,  that  only 
one-third  (jure  relictce)  passed  to  the  second  husband, 
the  other  two-thirds  being  the  son's,  for  whom,  as  admi- 
nistrator, her  possession  was  separate  and  distinct,  and 
could  not  warrant  attachment  by  her  own  or  her  hus- 
band's creditors. 

Appeal  came  to  be  heard  before  Lord  Mackenzie. 

Aytoun,  for  the  respondent,  pleaded  as  a  preliminary 
objection,  that  the  conclusions  of  the  summons  being  ad 
factum  prcBstandum,  the  appeal  was  incompetent. 

Beoun  answered — ^The  petition  concluded  alternatively 
for  restitution  of  the  articles,  or,  failing  restitution,  pay- 


266  CASES  BEFORE  THE  HIGH  COURT 

No.  42.  ment  of  a  sum  below  £25,  as  their  value.  There  were 
Others «.  thus  proper  pecuniary  conclusions  for  an  amount  not  ex- 
"^°^"^'  ceediug  the  statutory  sum,  and  the  appeal  was  therefore 

Glasgow.  ^      ^ 

Sept.  17.   competent. 

Lord  Mackenzie  had  no  difficulty  in  repelling  the 
objection ;  and,  after  hearing  counsel  on  the  merits,  he 
sustained  the  appeal,  to  the  effect  of  allowing  a  proof. 


1849. 
Appeal. 


John  Mathison,  Appellant — Broun. 

AGAINST 

The  Monkland  Iron  and  Steel  Company,  and  Alexander  W. 
Buttery,  Respondents — Logan. 

Appeal — Competency. — Held,  that  in  an  action  of  mnltiplepoind- 
ing,  it  is  the  amount  admitted  by  the  common  debtor  which  deter- 
mines whether  an  appeal  is  competent  to  the  Circuit  Court,  and  not 
the  amount  claimed  by  the  respective  appearers  in  the  process. 

No.  43.        This  was  an  Appeal  from  the  judgment  of  the  Sheriff 
Mathison  of  Lanarkshire,  to  which — 

Monkland       LoGAN,  for  the  respondents,  took  a  preliminary  objec- 
ironand  ^Jqq  ^jjg^t  ^g  the  summous  in  the  court  below  was  one  of 

steel  Co.,  ' 

»^f  A'®"'  multiplepoinding,  and  as  the  claims  of  each  party  ex- 
tery.     ceeded  £25,  there  were  no  proper  pecuniary  conclusions 

Glasgow,  for  bringing  it  within  the  limits  of  the  statutes  and  relative 
1849.     Act  of  Sederunt. 


Appeal.  Begun,  for  the  appellant — Though  the  debt  set  forth 
in  the  claims  exceeded  £25,  the  whole  debt  admitted  by 
the  raisers  of  the  multiplepoinding  was  below  that  sum; 
the  amount  admitted  by  the  raisers  must  be  considered 
the  subject-matter  of  the  suit,  the  process  of  multiple- 
poinding being  wholly  irrespective  of  the  amount  of  debt 
due  to  each  party  who  claimed  to  be  preferred. 

Lord  Mackenzie,  after  consulting  with  Lord  Ivory, 
repelled  the  objection  to  the  competency  of  the  appeal* 
and  the  case  proceeded  on  the  merits. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  267 

1 

NORTH   CIRCUIT. 

Autumn,  1849. 

ABERDEEN. 

Present, 

Sept.  20. 

Lords  Moncbieff  and  Cockbdrn.  iSiS- 

Her  Majesty's  Advocate. — B.  F.  Maitland  A.D. 

AGAINST 

William  Clark  and  Janet  Gray  or  Thomson. — C.  F.  Shand. 

Indictment — Murder — Relevancy. — Circumstances  in  which  the 
Crown  were  held  not  entitled  to  libel,  after  describing  the  person 
alleged  to  have  been  murdered,  '  or  some  other  person  to  the  prose- 
cutor unknown.' 

William  Clark  and  Janet  Gray  or  Thomson  were 
charged  with  Murder  : 

In  so  FAR  AS,  on  the  5th  day  of  July  1849,  or  on  one  or  other  of    No.  44. 
the  days  of  that  month,  or  of  June  immediately  preceding,  or  of    Wiiliam 
August  immediately  following,  at  or  near  a  part  of  the  public  road  ja^et  Gray 
leading  from  the  village  of  Ellon,  in  the  parish  of  Ellon,  and  shire  of        or 

Aberdeen,  towards  Esslemont  House,  in  the  parish  of  Ellon  aforesaid,  ,' 

then  and  now  or  lately  occupied  by  Charles  Napier  Gordon,  Esquire,  '^'"^J'^S*"" 
of  Esslemont,  which  part  of  said  road  is  situated  fifty  yards,  or  there-  1849. 
by,  or  other  short  distance,  westward  from  the  house  at  or  near  Craig-  j^r  , 
hall,  in  the  parish  of  Ellon  aforesaid,  then  and  now  or  lately  occupied 
by  George  Soorgie,  a  labourer,  then  aud  now  or  lately  residing  there, 
or  on  the  ground  at  the  side  of,  or  adjoining  to,  the  said  part  of  said 
road,  or  at  some  other  place  to  the  prosecutor  unknown  in  the  vicinity 
of  said  part  of  said  road  or  of  the  said  village  of  Ellon,  you  the  said 
William  Clark  and  Janet  Gray  or  Thomson  did,  both  and  each,  or  one 
or  other  of  you,  wickedly  and  feloniously,  attack  and  assault  the  now 
deceased  Elizabeth  or  Bridget  Conlie  or  ConoUy  or  Clark,  wife,  or  re- 
puted wife  of,  and  then  or  recently  before  travelling  the  country  in  com- 
pany with,  you  the  said  William  Clark,  or  some  other  woman,  now 
deceased,  whose  name  and  abode  are  to  the  prosecutor  unknown,  and 
did  knock  or  force  her  down,  and  did,  with  a  knife,  or  a  razor,  or 
some  other  instrument  to  the  prosecutor  unknown,  which  you  did  in- 
troduce into  her  private  part,  or  by  a  kick  or  kicks  on  or  near  her 


268  CASES  BEFORE  THE  HIGH  COURT 

No.  44.     private  part  or  tlie  lower  part  of  her  belly,  or  by  some  other  means 

Clarlctnd  *°  ^^^  prosecutor  unknown,  inflict  two,  or  thereby,  severe  wounds 

Janet  Gray  within  or  near  her  vagina,  to  the  great  effusion  of  her  blood,  and  did 

Thorns  n   "tl^^rwise  maltreat  and  abuse  her ;  by  all  which,  or  part  thereof,  the 

said  Elizabeth  or  Briget  Conlie  or  ConoUy  or  Clark,  or  said  other 

Sept.  20"'  '"'Oman  whose  name  and  abode  are  to  the  prosecutor  unknown,  was 

1849.      mortally  injured,  and  in  consequence  thereof  immediately,  or  soon 

Murder,    thereafter,  died,  and  was  thus  murdered  by  you  the  said  William 

Clark  and  Janet  Gray  or  Thomson,  or  tiy  one  or  other  of  you. 

Shand,  for  the  pannels,  objected  to  the  relevancy  of 
the  indictment,  in  so  far  as,  after  libelling  certain  speci- 
fic modes  by  which  the  deceased  was  alleged  to  have 
been  murdered,  it  went  on  to  say,  '  or  by  some  other 
'  means  to  the  prosecutor  unknown.'  This  was  too 
vague.  If  intended  to  meet  any  case  not  covered  by 
what  preceded,  it  was  much  too  loose ;  and  if  only  in- 
tended to  refer  to  the  more  specific  charge  before  made, 
it  was  unnecessary.  It  was  not  pretended  that  the  cir- 
cumstances of  the  case  rendered  it  necessary  to  take 
such  a  latitude,  and  it  was  impossible  for  a  pannel  to 
meet  a  charge  preferred  in  so  vague  terms  as  those  ob- 
jected to. 

Maitland  replied,  that  the  words  objected  to  were 
words  of  style,  and  were  used  in  almost  every  case  of 
the  like  nature. 

Lord  Monceeiff. — There  is  no  doubt  that  the  priso- 
ner is  entitled  to  know,  as  far  as  possible,  the  exact 
charge  he  is  to  meet ;  and  I  do  not  think  that  in  this 
case  the  prosecutor  will  be  entitled  to  prove  any  mode 
of  death  differing  materially  from  that  which  is  previ- 
ously and  more  specially  charged.  The  prisoners  may 
rely  upon  the  protection  of  the  Court  in  that  respect. 
At  the  same  time,  I  am  not  for  sustaining  the  objection, 
to  the  effect  of  instantly  ordering  the  words  to  be  de- 
leted. Our  decision  would,  doubtless,  be  founded  on  as 
a  precedent,  which,  sitting  in  Circuit,  I  am  unwilling  to 
create  in  a  matter  of  so  much  importance. 

Lord  Cockburn  concurred. 

The  objection  was  repelled. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  269 

Shand  then  obiected  to  the  words,  '  or  some  other    No.  u. 

Ill  William 

'  woman  now  deceased,  whose  name  and  abode  are  to  ciarkand 
'  the  prosecutor  unknown.  These  words,  following  the  ^"''or  "^^ 
description  given  of  the  deceased  as  the  wife  of  the  male  '''^'""^"°- 
prisoner,  seemed  to  imply  that  the  prosecutor  had  two  4ep^^2o?" 
women  in  view ;  but,  if  so,  he  ought  to  have  libelled  '"^^- 
more  specifically.  Murder. 

Maitland  replied — The  general  words  of  description 
were  not  intended  to  denote  any  other  woman  than  her 
whose  name  had  been  given,  so  far  as  known.  All  the 
information  he  possessed  had  been  given,  but  he  might 
be  wrong  in  believing  the  deceased  to  have  been  the 
wife  or  reputed  wife  of  the  pannel ;  and  it  was  to  meet 
any  difficulty  of  that  kind  which  the  pannel  might  occa- 
sion, that  the  general  words  were  used.  There  was  no- 
thing incompetent  in  such  a  mode  of  libelling ;  for  cases 
might  be  supposed  where  a  murder  was  committed,  and 
no  one  be  able  to  say  even  to  what  country  the  de- 
ceased belonged. 

Lord  Cockburn. — I  have  no  doubt  of  the  compe- 
tency of  prosecuting  for  the  murder  of  a  person  who  is 
utterly,  unknown ;  but  can  an  indictment  stand  which 
simply  charges  a  prisoner  with  the  murder  of  a  woman 
unknown,  without  giving  any  account  whatsoever  of  her, 
when,  and  how  found  ?  I  think  not ;  and  therefore  I 
am  for  sustaining  the  objection,  because,  whatever  the 
prosecutor  may  have  intended  in  point  of  construction, 
the  words  objected  to  might  be  made  to  apply  to  any 
dead  woman  who  ever  lived  in  the  world. 

Lord  Moncreiff  concurred. 

The  words  objected  to  were  struck  out  of  the  indictment. 

The  case  went  to  trial ;  and  after  hearing  .counsel  on 
both  sides,  the  Jury  found  a  verdict  of  Not  Proven 
against  both  prisoners. 

In  respect  of  which  verdict  of  assize,  the  said  William 
Clark  and  Janet  Gray  or  Thomson  were  assoilzed 
simpliciter,  and  dismissed  from  the  bar. 


270 


CASES  BEFORE  THE  HIGH  COURT 


PERTH. 


Sept.  26. 
1849. 


Present, 
Lords  Moncreiff  and  Cockburn. 

Her  Majesty's  Advocate — E.  F.  Maitland  A.D.- 
W.  H.  Thomson  A.  D. 


No.  45. 
Walter 
Duncan. 

Perth. 

Sept.  26. 

1849. 

Breach  of 
Trust  and 
Embezzle- 
ment. 


against 
Walter  Duncan — W.  G.  Dickson. 

Embezlement. — Circumstances  in  which  the  Court  directed  the  jurj 
to  find  the  pannel  guilty  of  embezzlement,  notwithstanding  his  ac- 
counts had  been  passed,  wherein  was  shewn  the  true  balance  due 
by  him. 

W^ ALTER  Duncan  was  charged  with  Breach  of  Trust 
and  Embezzlement : 

In  so  far  as,  you  the  said  "Walter  Duncan  having  been  appointed 
treasurer  of  a  friendly  society,  or  other  similar  association,  at  or  near 
Dundee,  or  carrying  on  its  operations  there,  calling  itself,  or  known 
as,  the  Prince's  Street  Yearly  Society,  or  having  some  similar  desig- 
nation, of  which  John  Fichet,  now  or  lately  a  storekeeper  in  the  em- 
ployment of  Gourlay,  Mudie,  and  Company,  engineers  and  founders 
in  Dundee,  and  now  or  lately  residing  at  or  near  Albert 'Street  of 
Dundee,  David  Smith,  a  wright,  now  or  lately  residing  at  or  near 
Ann  Street,  Maxwelltown  of  Dundee,  Richard  Mennie,  a  shoemaker, 
now  or  lately  residing  at  or  near  Prince's  Street  of  Dundee,  and  Wil- 
liam Kidd,  a  mechanic,  now  or  lately  residing  in  or  near  Union 
Street,  Maxwelltown  of  Dundee,  or  one  or  more  of  them,  and  others, 
were  individual  members,  and  you  the  said  Walter  Duncan  having 
acted  as  treasurer  aforesaid  from  the  2d  day  of  November  1848  to  at 
or  about  the  29th  day  of  May  1849,  both  inclusive,  and  haviilg,  dur- 
ing the  said  period,  been  entrusted  as  treasurer  aforesaid  to  collect 
and  receive  or  hold  the  funds  of  the  said  society,  and  to  receive  or 
hold  the  sum  of  £123,  or  thereby,  borrowed  by  the  said  society,  or  by 
you  the  said  Walter  Duncan,  as  treasurer  aforesaid,  and  for  behoof  of 
said  society,  from  the  Eastern  Bank  of  Scotland ;  and  it  being  the 
duty  of  you  the  said  Walter  Duncan,  as  treasurer  aforesaid,  to  apply 
the  said  funds  and  borrowed  money^  so  far  as  requisite,  to  the  pur- 
poses of  the.said  society,  and  faithfully  to  account  to  the  said  society, 
or  the  individual  members  thereof,  for  the  said  funds  and  borrowed 
money  so  entrusted  to  you,  you  the  said  Walter  Duncan,  did,  at  one 
or  more  times,  between  the  said  2d  day  of  November  1848  and  the 


AND  CIRCUIT  COUllTS  OF  JUSTICIARY.  271 

eaid  29th  day  of  May  1849,  both  inclusive,  the  particular  time  or  No.  45. 
times  being  to  the  prosecutor  unknown,  in  or  near  the  house  situated  p^^^^ 
at  or  near  Blackscroft  of  Dundee,  then  and  lately  occupied  by  you 


Perth 
the  said  Walter  Duncan,  or  elsewhere  in  or  near  Dundee  to  the  pro-    gg^t.  26. 

secutor  unknown,  wickedly  and  feloniously,  and  in  breach  of  the  trust      1849. 

committed  to  you  as  aforesaid,  embezzle  and  appropriate  to  your  own  Breach  of 

use  the  sum  of  eighty  pounds  twelve  shillings  and  threepence-half-  S"?*  *, 

penny  sterling,  or  thereby,  or  part  thereof,  part  of  said  funds  or  bor-      meat. 

rowed  money  entrusted  to  you  as  aforesaid,  and  did  fail  to  account 

therefor  to  the  said  society,  and  to  the  said  John  Fitchet,  David 

Smith,  Richard  Mennie,  and  William  Kidd,  or  one  or  more  of  them, 

and  others,  the  indvidual  members  thereof. 

It  appeared  in  evidence,  that  the  society  libelled  on 
was  a  yearly  sick  and  funeral  society,  which  commenced 
in  the  November  of  one  year,  and  lasted  till  that  month 
in  the  year  following,  when  it  was  wound  up,  and  the 
funds,  so  far  as  not  exhausted,  were  distributed  among 
the  members.  A  new  society  was  constituted  for  the 
same  purposes  immediately  afterwards  by  the  members 
of  the  preceding  one,  and  the  requisite  officers  elected. 
The  pannel  had  been  treasurer  of  nine  of  these  succes- 
sive societies.  His  duty  was  to  receive  the  society's 
funds,  and  to  pay  them  to  the  individuals  entitled  by 
the  rules  to  relief.  According  to  the  regulations  (which 
were  printed)  the  members  paid  their  subscriptions 
every  Saturday  evening ;  and  the  pannel  was  required 
to  put  the  sum  so  subscribed  into  bank  on  the  following 
Monday,  retaining  only  £8  in  his  hands  to  meet  the 
weekly  expenses. 

The  pannel's  books  were  made  up  and  balanced 
monthly,  under  the  eye  of  a  managing  committee,  when 
the  balance  in  his  hands  was  regularly  stated  against 
him,  and  carried  forward  to  the  next  month.  The 
books  were  open  to  the  society,  being  produced  at  their 
several  meetings. 

From  the  monthly  statements  and  relative  documents,  it 
appeared  that  the  pannel,  instead  of  putting  into  the  bank 
the  weekly  subscriptions,  retaining  only  £8  for  current 
expenses,  had  allowed  a  balance  to  accumulate  against 


272  CASES  BEFORE  THE  HIGH  COURT 

No.  45.  him  for  several  successive  months  of  £23,  £34,  £35, 

Duncan.  £54,  £113  respectively,  and  lastly,  the  sum  of  £80 :  12 : 3 

Perth,  libelled.     It  also  appeared,  that  when  the  immediately 

1849. '  preceding  society  was  wound  up,  there  was  a  balance  of 


Breach  of  £22  agaiust  him ;  notwithstanding  which  he  was  elected 
Embezzi'e-  treasurer  of  the  society  libelled.  It  was  proved  that 
'"^°*"  the  managing  committee  had  remonstrated  verbally 
with  him  regarding  his  increasing  balances,  but  without 
getting  any  satisfactory  explanations.  Until  the  date 
libelled,  however,  they  had  never  become  alarmed  for 
the  safety  of  their  funds,  or  brought  the  matter  formally 
before  the  society  by  a  regular  minute. 

The  pannels  books  were  correctly  kept,  and  he  was 
not  in  arrear  to  any  member  for  sick  or  funeral  allow- 
ances. The  declaration  admitted,  that  the  pannel  was 
in  arrear  (but  only  for  about  half  of  the  sum  proved 
against  him),  and  that  he  had  applied  the  sum  so  in  ar- 
rear to  his  private  purposes. 

Upon  these  facts,  E.  F.  Maitland  for  the  Crown, 
asked  a  verdict  of  guilty. 

W.  G.  Dickson,  for  the  pannel,  contended,  that  al- 
though the  prosecutor  had  proved  the  pannel's  retention 
of  the  sum  libelled,  he  had  failed  to  show  that  the  reten- 
tion was  criminal.  In  order  to  make  out  a  charge  of 
embezzlement,  the  pannel's  act  must  be  proved  both  to 
have  been  fraudulent,  and  without  the  consent  of  his 
employers.  But  here,  there  was  evidence  of  the  society's 
consent  for  many  successive  months  to  the  pannel  re- 
taining a  large  balance  in  his  hands ;  and  he  was  even 
re-elected  to  his  oflfice,  notwithstanding  his  having  been 
very  considerably  in  arrear  to  the  preceding  society. 
Their  consent  was  therefore  proved  ;  and  the  sum  which 
the  pannel  owed  them  thereby  became  a  loan  from  them, 
in  place  of  being  embezzled. 

Lord  Cockburn,  in  summing  up,  said — That  this  was 
an  important  case  in  reference  to  the  law,  and  to  the 
criminal  responsibility  of  persons  entrusted  with  the 
money  of  others  for  special  purposes.     The  Jury  need 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  273 

not  feel  any  anxiety  as  to  the  facts  ;  because  none  of  the  ^■. ^• 

material  ones  seemed  to  be  disputed,  and  they  were  per-  Duncan. 
fectly  simple.  The  sole  point  on  which  the  parties  dif-  Perth, 
fered,  was  as  to  the  construction,  with  reference  to  guilt     ^849. ' 


or  innocence,   which  the  '  circumstances  ought  to  re-  Breach  of 

Trust  and 
CeiVe.  Embezzle- 

It  would  be  a  mistake  to  suppose  that  the  charge  was     ™™*' 
merely  that  the  prisoner  had  fallen  behind  in  his  ac- 
counts.    It  was,  that  he  had  beeu  guilty  of  breach  of 
trust  or  embezzlement,  or  of  a  wicked  and  felonious  ap- 
propriation.    The  fact  of  his  having  been  the  society's 
debtor  is  admitted.    But  the  question  was,  did  he  become 
so  criminally  ?    This  it  was  the  province  of  the  Jury  to 
determine,  on  a  review  of  the  whole  circumstances.     Of 
these  the  principal  were,  that  the  prisoner  was  the  officer  of 
this  charitable  society.     He  was  not  entitled  to  act  at  all 
for  himself.     He  was  the  holder  of  the  funds  of  others ; 
and  these,  arising  from  the  contributions  of  persons  in 
humble  situations,  for  the  relief  of  themselves  and  others 
when  in  distress,  were  entitled  to  his  most  scrupulous 
protection,  and  he  had  no  discretion  as  to  his  applica- 
tion of  them.     By  the  10th  Rule  of  the  Society,  he  was 
allowed  to  have  £8  in  his  hands  to  answer  current  de- 
mands ;  and  every  farthing  above  this,  he  was  expressly 
bound  to  deposit  every  Monday  in  the  bank  for  his  con- 
stituents.    He  held  the  money  therefore  officially, — and 
under  a  special  direction  as  to  its  custody  and  application. 
He  was  in  the  same  position  as  a  servant,  who  had  got 
cash  from  his  master  to  carry  to  a  particular  place.     It 
was  certain  that  he  violated  this  official  duty.     Instead 
of  only  owing  the  society  £8,  he  at  last  owed  it  about 
£80.     And  what  was  the  cause  of  this  deficiency  ?     No 
mistake, — no  dispute  about  the  true  amount  of  the  balance, 
— no  direction  by  the  society, — no  inadvertent  confusion, 
or  mixing  of  his  own  funds  wifli  theirs.     It  was,  that  he 
had  taken  the  money  to  himself.     He  says  in  his  declara- 
tion, '  that  the  reason  he  is  so  deficient  is,  that  he  has 
'  employed  the  money  in  his  own  private  matters,  and  he 


274  CASES  BEFORE  THE  HIGH  COURT 

No.  46.    '  is  very  sorry  for  having  injured  the  society,  who  put 
Duncan.   *  Confidence  in  him.' 

Perth.        It  was  for  the  Jury  to  say  whether  they  could  put 

^?849^.^'  any  construction  on  this  proceeding  consistent  with  the 

Breach  of  prisoucr's  innocence  ?     It  seemed  to  his  Lordship  very 

Embezde-  ^^^^  ^^^  common  case  of  an  agent,  or  servant,  getting 

ment.     gash  for  a  special  purpose,  and  making  off  with  it,  or 

spending  it  for  his  own  behoof.     It  was  no  mere  getting 

into  debt.     It  was  a  getting  into  debt  by  a  direct  and 

intended  self  appropriation. 

Some  things  had  been  urged  for  the  prisoner, — which 
certainly  deserved  the  Jury's  attention. 

One  was,  that  the  society  had  known  of  his  regularly 
increasing  deficiency  without  checking  it.  But,  in  the 
first  place,  the  jury  would  consider  whether  their  know- 
ledge was  proved.  That  they  were  alarmed  is  certain ; 
for  they  had  spoken  to  him  on  the  subject.  But  the 
secretary  swore  that  the  prisoner  put  them  off  by  what 
had  since  been  found  to  be, evasive  pretences.  However, 
in  the  second  place,  whatever  effect  this  negligence  of  the 
society  might  have  on  account  in  awarding  punishment,  it 
was  no  legal  defence.  The  prisoner  himself  admits  that 
the  society  confided  in  him,  and  he  says  he  is  sorry  for 
having  abused  their  confidence.  To  urge  this  confidence 
on  the  part  of  the  employer,  as  a  defence  for  abusing  it, 
seems  rather  an  awkward  topic  for  the  abuser. 

Another  was,  that  the  prisoner  intended  to  have  replaced 
the  money.  The  Jury  had  better  discard  this  utterly. 
Many  enormous  frauds  were  committed  under  the  expec- 
tation that  they  may  be  concealed,  or  atoned  for,  by  re- 
placing the  funds  before  their  abstraction  shall  be  de- 
tected. This  was  a  common  delusion,  or  pretence,  with 
embezzlers.  But  it  was  no  more  a  defence  against  fraud, 
than  it  would  be  against  a  charge  of  robbery. 

The  last  was,  that  the  prisoner  had  the  consent  of  the 
society  for  what  he  did.  If  the  Jury  believed  this  to  be 
the  fact,  they  were  bound  to  acquit  No  party  who 
consented  to  it,  was  either  cheated  or  robbed.     But  they 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  275 

must  have  clear  evidence  of  it,  before  they  could  credit  No^  «^ 
so  extraordinary  a  fact,  as  that  a  charitable  society  Dnnean. 
agreed  to  let  its  treasurer  appropriate  its  funds.  His  gj^rth^ 
Lordship  was  not  avirare  where  the  evidence  was  to  be  im. ' 
found  here,  or  anything:  that  could  be  mistaken  for  it.       Breach  of 

.  •  1  ■  Trust  and 

On  the  whole,  there  were  two  opposite  considerations,  Embezzie- 
which  the  Jury  ought  to  keep  in  view.  On  the  one  '"''°*- 
hand,  it  would  be  hard  and  unjust, if  the  prisoner  were 
to  be  sacrificed  to  the  feeling  that  he  had  injured  a 
friendly  society.  And  on  the  other  hand,  if  he  was 
guilty,  it  was  important  for  the  law,  and  as  a  warning 
to  the  holders  of  other  men's  funds,  that  his  guilt  should 
be  declared. 

The  Jury,  after  retiring,  returned  to  put  a  question 
to  the  Court.  One  of  their  number  pointed  out  that 
there  were  periodical  docquets  in  the  books ;  in  which 
a  series  of  balances  far  beyond  £8  were  struck  as  against 
the  prisoner,  and  the  question  was,  whether  each  of 
these  docquets  was  not  in  law  a  virtual  consent  by  the 
society,  that  the  prisoner  might  continue  to  hold  the 
sums  thus  set  down  as  due  by  him  ? 

LoED  CocKBURisr,  after  consulting  with  Lord  Mon- 
creifT,  answered, —  That  they  were  both  of  opinion 
that,  as  a  matter  of  law,  this  was  neither  the  effect  nor 
the  object  of  the  docquets ;  but  that  if  the  Jury  thought 
that,  as  a  matter  of  fact,  the  docquets  indicated  consent 
by  the  society,  they  of  course  were  entitled  to  put  this 
construction  upon  the  fact. 

The  Jury  found  the  pannel  guilty  as  libelled,  but 
unanimously  and  strongly  recommended  him  to  mercy. 

Lord  CocEBURisr,  addressing  the  prisoner,  said,  that 
he  thought  the  Jury  had  disposed  of  the  case  humanely 
towards  him,  but  firmly  towards  the  law.  In  the  case 
that  seemed  to  come  nearest  this,  the  Court  had  sen- 
tenced the  prisoner  to  six  month's  imprisonment ; — cer- 
tainly a  very  lenient  sentence.  But  here  there  were 
two  circumstances  which  operated  in  the  prisoner's  fa- 


276 


CASES  BEFORE  THE  HIGfH  COURT 


vour.  He  had  already  been  a  considerable  period  in 
jail ;  and,  to  a  certain  extent,  he  had  been  led  on  by  the 
society  failing  to  check  him  effectually  the  instant  it  be- 
came alarmed.  In  this  situation,  the  present  sentence 
Breach  of  was  that  of  imprisonment  for  three  months. 

Trust  and 
Embezzle- 
ment. 


No.  45. 
Walter 
Duncan. 

Perth. 

Sent.  26. 

1849. 


N()v.  6. 
1849. 


Present, 

The  Lord  Justice-Clerk. 

Lords  Moncreifp  and  Cockburn. 

Her  Majesty's  Advocate — Beas  A.D. — E.  F.  Maitland  A.D. 


AGAINST 

George  Kippen — Logan — A.  T.  Boyle. 

Relevancy — Falsehood,  Fraud,  and  Wilful  Imposition. — Cir- 
cumstances in  which  an  objection  to  the  relevancy  of  an  indictment, 
that  it  did  not  charge  that  the  attempt  to  defraud  had  been  success- 
ful, was  repelled. 

Geoi^^e'        GrEORGE   KiPPEN,  Writer  in  Glasgow,  was   indicted, 
Kippen.    That  albeit,  by  the  laws  of  this  and  of  every  other  well- 


^'g''^""''*-  governed  realm,  Falsehood  and  Fraud,  especially  when 
1  "49.     committed  in  the  form  and  under  colour  of  legal  pro- 

Fr'^ud°& '  c®6<ii"gS'  ^^*i  ^^"^  *^^  purpose  of  obstructing  or  defeating 
the  course  of  justice,  and  to  the  lesion,  injury,  and  op- 
pression, of  the  lieges,  is  a  crime  of  an  heinous  nature, 
and  severely  punishable : 

Yet  true  tt  is  and  of  verity,  that  you  the  said  George  Kippen 
are  guilty  of  the  said  crime  of  falsehood  and  fraud,  aggravated  as 
aforesaid,  actor,  or  art  and  part :  In  so  par  as  (1.),  the  Company  of 
Proprietors  of  the  Glasgow  Water -Works,  and  Daniel  Mackain,  now 
or  lately  secretary  to  the  said  company,  and  now  or  lately  residing  at 
or  near  Dalmarnock,  in  or  near  Glasgow,  having,  on  the  29th  day  of 
February  1848,  or  about  that  time,  obtained  a  warrant  granted  by 
Henry  Glassford  Bell,  Esquire,  advocate,  sheriff-substitute  of  Lanark- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  277 

shire,  against  you  the  said  George  Kippen,  and  other  persons  referred     No.  46. 
to  in  the  said  warrant,  by  which,  in  respect  of  your  having  refused  or     ifippen. 
delayed  to  pay  to  the  said  Company,  or  the  said  Daniel  Mackain,  as  jj;„jjCo„rt. 
secretary  aforesaid,  the  sum  of  £l :  8  :  6,  being  water-rent  or  rate  due     Nov.  6. 
by  you  to  the  said  Company,  authority  was  given  to  oflScers  of  court  " 

to  enter  the  premises  of  you  the  said  George  Kippen,  and  to  seize  and  Falsehood, 
1  .        »  ,         ,     n.  1  T        1  •  1  i       ii.      Fraud,  &e. 

take  possession  of  your  goods  and  efJeots,  and  by  which  warrant  autho- 
rity was  also  given  to  the  said  Daniel  Mackain,  as  secretary  aforesaid, 
if  the  said  sum,  together  with  the  expense  of  procedure,  should  not  be 
paid  within  three  days  after  such  goods  and  effects  should  be  so  seized 
and  taken  possession  of,"  to  sell  or  dispose  of  the  said  effects,  or  such 
part  thereof  as  might  be  necessary,  by  public  roup,  and  to  apply  the 
price  thereof  in  payment  of  the  said  sum  of  water-  rent  or  rate  due  by 
you  the  said  George  Kippen  as  aforesaid,  with  the  expenses  of  proce- 
dure ;  and  you  the  said  George  Kippen  having  formed  the  wicked  and 
felonious  purpose  of  obstructing  or  defeating  execution  of  the  said  war- 
rant, did,  on  the  19th  day  of  April  1848,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  March  immediately  preceding,  or  of  May 
immediately  following,  in  or  near  the  house  or  office  at  or  near  Fife 
Place  aforesaid,  then  and  now  or  lately  occupied  by  you,  or  in  or  near 
the  sheriff-clerk's  office  of  Glasgow,  or  at  some  other  place  in  or  near 
Glasgow  to  the  prosecutor  unknown,  falsely,  fraudulently,  and  felo- 
niously, devise,  and  raise,  or  cause  or  procure  to  be  raised,  a  summons 
before  the  ordinary  Sheriff-Court  of  Lanarkshire,  at  Glasgow,  in  name 
of  James  M'Gill,  sometime  provision-merchant  in  Melville   Court, 
Trongate  Street  of  Glasgow,  and  now  or  lately  residing  in  or  near 
Little  Hamilton  Street,  Glasgow,  or  of  some  wholly  fictitious  person 
designed  in  the  said  summons  as  '  James  M'Gill  Provision  Merchant 
'  in  Glasgow  Pursuer,'  against  the  said  Daniel  Mackain,  as  secretary 
to  the  said  Company  of  Proprietors  of  the  Glasgow  Water-Works,  and 
for  behoof  of  said  Company,  setting  forth,  that  the  said  Daniel  Mac- 
kain, or  an  officer  acting  for  him,  had,  on  or  about  the  12th  day  of 
April  1848,  proceeded  to  the  said  •James  M'Gill,  pursuers  house  in 
Adelphi  Street,  Hutchisontown,  Glasgow,  and,  contrary  to  his  wish, 
illegally  executed  a  poinding  of  certain  effects  situated  therein,  for  an 
arrear  of  water-rent  said  to  be  due  to  the  said  Daniel  Mackain,  de- 
fender, and  that  in  carrying  into  effect  the  said  poinding,  the  said 
Daniel  Mackain,  defender,  or  the  person  acting  for  him,  assaulted  and 
abused  the  said  James  M'Gill,  pursuer,  and  repeatedly  knocked  him 
down,  and  that  the  said  Daniel   Mackain  was  therefore  liable   in 
damages  to  the  said  James  M'Gill,  pursuer,  therefor,  and  concluding 
for  payment  of  the  sum  of  £10  sterling,  in  name  of  damages,  with  ex- 
penses of  process,  or  having  some  similar  narrative,  allegations,  and 
conclusions,  and  containing  a  warrant  or  precept  of  arrestment  in  com- 
mon form,  the  said  summons,  in  the  narrative,  allegations,  and  conclu- 
sions thereof,  being,  and  you  the  said  George  Kippen  well  knowing  it 


278  CASES  BEFORE  THE  HIGH  COURT 

No.  46.     to  be,  entirely  false,  fraudulent,  and  fictitious,  and  intended  for  the 
ffippfn.    purpose  of  fraudulently  obstructing  or  defeating  execution  of  tbe  said 

warrant  obtained  against  you  by  the  said  company  and  the  said  Daniel 

Nov.°6.  '  Mackain,  their  secretary,  as  aforesaid ;  and  you  the  said  George  Kip- 
-8^9-  pen  did,  on  the  said  19th  day  of  April  1848,  or  on  a  day,  after  and 
Falsehood,  about  that  time,  to  the  prosecutor  unknown,  in  or  near  the  said  house 
Fraud,  &c.  ^^  ^jg^g  ^^  ^^  ^g^^j,  •pj£g  'place  aforesaid,  or  elsewhere  in  or  near  Glas- 
gow to  the  prosecutor  unknown,  in  virtue  or  on  pretence  of  the  war- 
rant or  precept  of  arrestment  aforesaid,  contained  in  the  said  false  and 
fraudulent  summons,  wickedly,  fraudulently,  and  feloniously,  cause  or 
procure  to  be  served  on  yourself  by  John  M'Kinlay,  then  and  now  or 
lately  sheriff-oflBcer  in  Glasgow,  and  now  or  lately  residing  in  Mait- 
land  Street  of  Cowcaddens,  in  or  near  Glasgow,  an  arrestment,  in 
name  of  the  said  James  M'Gill,  fencing  and  arresting,  or  pretending 
to  fence  and  arrest,  in  the  hands  of  you  the  said  George  Kippen,  all 
moveable  goods,  debts,  and  effects,  due  by  you  to  the  said  Company, 
or  to  the  said  Daniel  Mackain  for  their  behoof ;  and  all  this  you  the 
said  George  Kippen  did,  in  pursuance  of  the  wicked  and  felonious  pur- 
pose, formed  by  you  as  aforesaid,  of  obstructing  or  defeating  the  exe- 
cution of  the  said  decree  or  warrant  against  you,  obtained  by  the  said 
Company  of  Proprietors  of  the  Glasgow  Water-Works,  and  by  the 
said  Daniel  Mackain,  as  before  libelled,  and  to  the  lesion,  injury,  and 
oppression  of  the  said  Company,  and  of  the  said  Daniel  Mackain,  or  of 
one  or  other  of  them  :  Likeas  (2.),  William  M'Lean,  a  clerk,  now  or 
lately  residing  at  Springvale,  in  or  near  Glasgow,  having  on  the  13th 
day  of  April  1848,  or  about  that  time,  obtained  decree  before  the 
Sheriff  Small-Debt  Court  of  Glasgow,  at  his  instance  against  you  the 
said  George  Kippen,  for  the  sum  of  £2  :  6  :  2  of  principal,  and  48.  Id. 
of  costs,  you  the  said  George  Kippen,  having  formed  the  wicked  and 
felonious  purpose  of  obstructing  or  defeating  execution  of  the  said  de- 
cree, did,  on  the  18th  day  of  April  1848,  or  on  one  or  other  of  the 
days  of  the  said  month  of  April,  or  of  March  immediately  preceding, 
or  of  May  immediately  following,  in  or  near  said  house  or  oflBce  in  or 
near  Fife  Place  aforesaid,  then  and  now  or  lately  occupied  by  you  the 
said  George  Kippen,  or  in  or  near  said  Sheriff-clerk's  office  of  Glasgow, 
or  elsewhere  in  or  near  Glasgow  to  the  prosecutor  unknown,  falsely, 
fraudulently,  and  feloniously,  devise,  and  raise,  or  cause  or  procure  to 
be  raised,  before  the  ordinary  Sheriff-Court  at  Glasgow,  a  summons  in 
name  of  James  Begbie,  now  or  lately  residing  in  or  near  Great  Dove 
Hill,  in  or  near  Glasgow,  or  of  some  wholly  fictitious  person,  designed 
iu  the  said  summons  as  '  James  Begbie  Commission  Agent  Melville 
'  Court  Glasgow,  Pursuer,'  against  the  said  William  M'Lean,  setting 
forth  that  the  said  James  Begbie,  pursuer,  had  lent  to  the  said  William 
M'Lean,  defender,  on  the  15th  day  of  March  1848,  the  sum  of  £50 
sterling,  and  that  the  said  sum  was  wholly  owing  and  unpaid,  and  con- 
cluding for  payment  of  the  same,  with  interest  and  expenses  of  pro- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  279 

cess,  or  having  some  similar  narrative,  allegations,  and  conclusions,     No.  46. 
and  containing  a  warrant  or  precept  of  arrestment  in  common  form,    Kippen. 
the  said  summons  being,  in  its  narrative,  allegations,  and  conclusions,  „•  i.  Court 
and  you  the  said  George  Kippen  well  knowing  it  to  be,  entirely  false,     Nov.  6. 
fraudulent,  and  fictitious,  and  intended  for  the  purpose  of  fraudulently      ^^ 
obstructing  or  defeating  execution  of  the  said  decree  obtained  against  Falsehood, 
you  by  the  said  William  M'Lean  as  aforesaid ;  and  you  the  said  Georgei  ' 

Kippen  did,  on  the  said  18th  day  of  April  1848,  or  on  a  day,  after  and 
about  that  time,  to  the  prosecutor  unknown,  in  or  near  the  said  house 
or  office  at  or  near  Fife  Place  aforesaid,  or  elsewhere  in  or  near  Glas- 
gow to  the  prosecutor  unknown,  in  virtue  or  on  pretence  of  the  said 
warrant  or  precept  of  arrestment  contained  in  said  false  and  fraudulent 
summons  last  above  libelled,  wickedly,  fraudulently,  and  feloniously, 
cause  or  procure  to  be  served  upon  you  by  the  foresaid  John  M'Kin- 
lay,  an  arrestment  in  name  of  James  Begbie,  fencing  and  arresting,  or 
pretending  to  fence  and  arrest,  in  your  hands  all  moveable  goods,  debts, 
and  effects  due  by  you  to  the  said  "William  M'Lean  ;  and  all  this  you 
the  said  George  Kippen  did  in  pursuance  of  the  wicked  and  felonious 
purpose,  formed  by  you  as  aforesaid,  of  obstructing  or  defeating  exe- 
cution of  the  said  decree  against  you  obtained  by  the  said  William 
M'Lean,  and  to  the  lesion,  injury,  and  oppression  of  the  said  William 
M'Lean:  Likeas  (3.),  Walter  Michael  Oppenheim,  now  or  lately 
looking-glass  merchant  in  or  near  Miller  Street  of  Glasgow,  and  now 
or  lately  residing  in  Stafford  Place,  New  City  Eoad,  in  or  near  Glas- 
gow, having,  in  conjoined  actions  before  the  Sheriff-Court  of  Lanark- 
shire, at  your  instance  against  the  said  Walter  Michael  Oppenheim, 
which  had  been  advocated  to  the  Court  of  Session,  and  thereafter  re- 
mitted back  to  the  Sheriff  of  Lanarkshire,  obtained,  on  the  4th  day  of 
February  1848,  or  about  that  time,  decree  in  his  favour  by  the  said 
Henry  Glassford  Bell,  Esquire,  sheriff-substitute  of  Lanarkshire, 
against  you  the  said  George  Kippen,  for  the  sum  of  £33  :  9  :  9  of  ex- 
penses of  process,  and  for  the  sum  of  Ss.  as  the  expense  of  extracting 
and  recording  said  decree ;  and  the  said  decree  having  been  extracted, 
and  you  the  said  George  Kippen  having  thereafter  ajjpealed  certain 
interlocutors  of  the  Court  of  Session  in  said  advocation  to  the  House 
of  Lords,  and  the  Lords  of  Council  and  Session  having,  by  interlocutor 
of  the  5th  day  of  July  1848,  allowed  interim  execution,  in  terms  of 
the  statute  48th  George  III.,  chapter  151,  of  said  decree  last  above 
libelled,  you  the  said  George  Kippen  having  formed  the  wicked  and 
felonious  purpose  of  obstructing  or  defeating  the  execution  of  the  said 
decree,  did,  on  the  7th  day  of  July  1848,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  June  immediately  preceding,  or  of  Auo-ust 
immediately  following,  in  or  near  said  house  or  office  in  or  near  Fife 
Place  aforesaid,  then  and  now  or  lately  occupied  by  you  the  said 
George  Kippen,  or  in  or  near  said  Sheriff-clerk's  office  of  Glasgow,  or 
elsewhe;-e  in  or  near  Glasgow  to  the  prosecutor  unknown,  falsely,  frau-- 

T 


280  CASES  BEFORE  THE  HIGH  COURT 

No.  46.    dulently,  and  feloniously,  devise  and  raise,  or  cause  to  be  raised,  be- 
ffitraln     ^°'®  ^^^  ordinary  Sheriff-Court  at  Glasgow,  a  summons,  in  name  of 

— — — Robert  Eussell,  now  or  lately  a  gas-surveyor,  and  now  or  lately  resid- 

JNov.  6.  '  ^^S  '°  or  near  Gallowgate  Street  of  Glasgow,  or  of  some  wholly  ficti- 
i'!^9-      tious  person,  designed  in  the  said  summons  as.  '  Robert  Russell,  some- 
Falsehood,  '  time  brickmaker  in  Glasgow,  and  residing  there,  pursuer,'  against 
Fraud,  &c.  ^^^  ^^j^  Walter  Michael  Oppenheim,  setting  forth  that  the  said  Robert 
Russell,  pursuer,  had,  on  the  11th  day  of  November  1847,  lent  the 
sum  of  £50  sterling  to  the  said  Walter  Michael  Oppenheim,  defender, 
and  that  the  said  sum  was  wholly  owing,  and  concluding  for  payment 
of  tiie  same  with  expenses,  or  having  some  similar  narrative,  allega- 
tions, and  conclusions,  and  containing  a  warrant  or  precept  of  arrest- 
ment in  common  form,  the  said  summons  being,  in  its  narrative,  alle- 
gations, and  conclusions,  and  you  the  said  George  Kippen  well  knowing 
it  to  be,  entirely  false,  fraudulent,  and  fictitious,  and  intended  for  the 
purpose  of  fraudulently  obstructing  or  defeating  execution  of  the  said 
decree  obtained  against  you  by  the  said  Walter  Michael  Oppenheim  as 
aforesaid ;  and  you  the  said  George  Kippen  did,  on  the  said  7th  day 
of  July  1848,  or  on  a  day,  after  and  about  that  time,  to  the  prosecutor 
unknown,  in  or  near  the  office  or  premises  situated  in  or  near  Bruns- 
wick Place,  in  or  near  Glasgow,  then  and  now  or  lately  occupied  by 
.  Robert  Chalmers,  an  agent  there,  or  elsewhere  in  or  near  Glasgow  to 
the  prosecutor  unknown,  in  virtue  or  on  pretence  of  the  said  warrant 
or  precept  of  arrestment  contained  in  said  false  and  fraudulent. sum- 
mons last  above  libelled,  wickedly,  fraudulently,  and  feloniously,  cause 
or  procure  to  be  served  upon  you  by  William  Smith,  now  or  lately 
sheriff-officer  in  Glasgow,  and  now  or  lately  residing  in  Bell  Street  of 
Glasgow,  an  arrestment  in  name  of  said  Robert  Russell,  fencing  and 
arresting  all  goods,  debts,  or  effects  in  your  hands,  belonging  to  the 
said  Walter  Michael  Oppenheim ;  and  all  this  you  the  said  George 
Kippen  did,  in  pursuance  of  the  wicked  and  felonious  purpose,  formed 
by  you  as  aforesaid,  of  obstructing  or  defeating  execution  of  the  said 
decree  against  you,  obtained  by  the  said  Walter  Michael  Oppenheim, 
as  before  libelled,  and  to  the  lesion,  injury,  and  oppression  of  the  said 
Walter  Michael  Oppenheim ;  And  you  the  said  George  Kippen,  in 
further  pursuance  of  the  wicked  and  felonious  purpose  last  above  libel- 
led, did,  on  the  7th  day  of  July  1848,  or  on  one  or  other  of  the  days 
of  that  month,  or  of  June  immediately  preceding,  or  of  August  imme- 
diately following,  in  or  near  said  house  or  office  in  or  near  Fife  Place 
aforesaid,  then  and  now  or  lately  occupied  by  you  the  said  George 
Kippen,  or  in  or  near  said  sheriff-clerk's  office  of  Glasgow,  or  elsewhere 
in  or  near  Glasgow  to  the  prosecutor  unknown,  falsely,  fraudulently, 
and  feloniously,  devise  and  raise,  or  cause  or  procure  to  be  raised,  be- 
fore the  Sheriff  Small-Debt  Court  of  Glasgow,  a  summons  or  complaint 
in  name  of  Robert  Burnside,  or  Robert  Allan  Burnside,  then  and  now 
or  lately  spirit-dealer  in  or  near  Howard  Street  of  Glasgow,  and  now 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  281 

or  lately  residing  in  or  near  Jamaica  Street  of  Glasgow,  or  of  some  No.  46. 
wholly  fictitious  person,  designed  in  the  said  summons  or  complaint  as  ^po'g^ 
'  Robert  Burnside,  spirit-dealer,  Howard  Street,  Glasgow,'  against  the 


said  "Walter  Michael  Oppenheim,  setting  forth  that  the  said  defender  '§oy°g'  ' 
was  owing  to  the  complainer  the  sum  of  £3  :  7 :  9  sterling,  per  account,  .'  849. 
and  concluding  for  payment  of  the  said  sum  with  expenses,  or  with  Falsehood, 
some  similar  narrative,  allegations,  and  conclusions,  and  containing  a  Fraud,  &c. 
warrant  or  precept  of  arrestment  in  common  form,  the  said  summons 
or  complaint,  in  its  narrative,  allegations,  and  conclusions,  being,  and 
you  the  said  George  Kippen  well  knowing  it  to  be,  entirely  false,  frau- 
dulent, and  fictitious,  and  intended  for  the  purpose  of  fraudulently  ob- 
structing or  defeating  execution  of  the  said  decree  obtained  against  you 
by  the  said  Walter  Michael  Oppenheim  as  aforesaid ;  and  you  the 
said  George  Kippen  did,  on  said  7th  day  of  July  1848,  or  on  a  day, 
after  and  about  that  time,  to  the  prosecutor  unknown,  in  or  near  the 
said  office  or  premises  situated  in  or  near  Brunswick  Place  aforesaid, 
then  and  now  or  lately  occupied  by  the  said  Robert  Chalmers,  or  else- 
where in  or  near  Glasgow  to  the  prosecutor  unknown,  in  virtue  or  on 
pretence  of  the  said  warrant  or  precept  of  arrestment  contained  in  the 
said  false  and  fraudulent  summons  or  complaint  last  above  libelled, 
wickedly,  fraudulently,  and  feloniously,  cause  or  procure  to  be  served 
upon  you,  by  the  said  William  Smith,  an  arrestment,  in  name  of  said 
Robert  Burnside,  or  Robert  Allan  Burnside,  fencing  and  arresting,  or 
pretending  to  fence  and  arrest,  in  your  hands,  all  goods,  efiects,  debts, 
and  sums  of  money  belonging  to  the  said  Walter  Michael  Oppenheim, 
and  that  to  an  amount  not  exceeding  £8:6:8;  and  all  this  you  the 
said  George  Kippen  did,  in  farther  pursuance  of  the  wicked  and  felo- 
nious purpose,  formed  by  you  as  aforesaid,  of  obstructing  or  defeating 
the  execution  of  the  said  decree  obtained  against  you  by  the  said 
Walter  Michael  Oppenheim,  and  to  the  lesion,  injury,  and  oppression, 
of  the  said  Walter  Michael  Oppenheim ;  and  in  further  prosecution  of 
your  said  wicked  and  felonious  purpese  of  obstructing  or  defeating  the 
execution  of  the  said  decree  obtained  against  you  by  the  said  Walter 
Michael  Oppenheim,  you  the  said  George  Kippen  did,  on  thp  14th  day 
of  July  1848,  or  on  one  or  other  of  the  days  of  that  month,  or  of  June 
immediately  preceding,  or  of  August  immediately  following,  in  or  near 
said  house  or  office  in  or  near  Fife  Place  aforesaid,  or  in  or  near  said 
sheriff-clerk's  office,  or  elsewhere  in  or  near  Glasgow  to  the  prosecutor 
unknown,  falsely,  fraudulently,  and  feloniously,  raise,  or  cause  or  pro- 
cure to  be  raised,  before  the  ordinary  Sheriff-Court  at  Glasgow,  a  sum- 
mons of  multiplepoinding  at  your  instance,  against  the  said  Walter 
Michael  Oppenheim,  Robert  Russell,  and  Robert  Burnside  or  Robert 
Allan  Burnside,  setting  forth  that  you  were  indebted  to  the  said  Walter 
Michael  Oppenheim  in  a  sum  of  money,  the  amount  of  which  would 
be  condescended  on  in  the  process  to  follow  on  said  summons,  and  that 
you  were  not  in  safety  to  pay  the  same,  in  respect  of  the  said  arrest- 


282  CASES  BEFORE  THE  HIGH  COURT 

No.  46.     ments,  or  pretended  arrestments,  served,  or  pretended  to  be  served,  on 
George  ^^  ^^^  names  of  the  said  Robert  Russell  and  Robert  Bumside  or 

Kippen.     J      '  r  .  1  1  1    J-        ii     i 

Robert  Allah  Burnside  respectively,  as  aforesaid,  and  concluding  that 


^  n'Jiv.T*'  you  tlie  said  George  Kippen  should  be  held  liable  in  once  and  single 
1849  payment  only,  and  under  deduction  of  the  expenses  of  the  said  process 
Falsehood,  of  niultiplepoinding  ;  and  this  also  you  did  to  the  lesion,  injury,  and 
Fraud,  &c.  oppression  of  the  said  Walter  Michael  Oppenheim  :  Likbas  (4.), 
Alexander  Dick  junior,  writer  in  Glasgow,  and  now  or  lately  residing 
in  or  near  Brunswick  Street,  in  or  near  Glasgow,  having,  on  the  Slst 
day  of  June  1848,  or  about"  that  time,  obtained  decree  at  his  instance 
before  the  ordinary  Sheriff-Court  at  Glasgow,  against  you  the  said 
George  Kippen,  for  the  sum  of  £11  :  6  :  10,  together  with  the  sum  of 
£l  :  16  :  3  of  expenses,  and  5s.  as  the  dues  of  extract,  and  said  decree 
having  been  extracted,  and  a  charge  of  payment  having  been  given 
thereon  to  you  the  said  George  Kippen,  on  the  4th  day  of  July  1848, 
or  about  that  time,  you  the  said  -George  Kippen  having  formed  the 
wicked  and  felonious  purpose  of  obstructing  or  defeating  execution  of 
the  said  decree,  did,  on  the  17th  day  of  July  1848,  or  on  one  or  other 
of  the  days  of  that  month,  or  of  June  immediately  preceding,  or  of 
August  immediately  following,  in  or  near  the  house  or  office  at  or  near 
Fife  Place  aforesaid,  then  and  now  or  lately  occupied  by  you  the  said 
George  Kippen,  or  in  or  near  the  said  sheriff-clerk's  office  of  Glasgow, 
or  at  some  other  place  in  or  near  Glasgow  to  the  prosecutor  unknown, 
falsely,  fraudulently,  and  feloniously,  devise  and  raise,  or  cause  or  pro- 
cure to  be  raised,  before  the  Sheriff  Small-Debt  Court  of  Glasgow,  a 
summons  or  complaint  in  name  of  William  Colquhoun,  carter,  now  or 
lately  residing  in  or  near  Hunter  Street,  in  or  near  Glasgow,  or  of 
some  wholly  fictitious  person,  designed  in  the  said  summons  or  com- 
plaint as  '  William  Colquhoun,  carter  1  Graham  Street  Gallowgate 
'  Glasgow,'  against  the  said  Alexander  Dick  junior,  setting  forth  that 
the  said  Alexander  Dick  junior  was  owing  to  the  said  William  Col- 
quhoun the  sum  of  £5  sterling,  per  account,  the  said  sum  of  £5  being 
stated  in  the  account  referred  to  in  the  said  summons  or  complaint,  as 
cash  lent  by  the  said  William  Colquhoun  to  the  said  Alexander  Dick 
junior,  and  concluding  for  payment  of  the  same  with  expenses,  or  hav- 
ing some  similar  narrative,  allegations,  and  conclusions,  and  containing 
a  precept  of  arrestment  in  common  form,  the  said  summons  or  com- 
plaint being,  in  the  narrative,  allegations,  and  conclusions  thereof,  and 
you  the  said  George  Kippen  well  knowing  it  to  be,  entirely  false,  frau- 
dulent, and  fictitious,  and  intended  for  the  purpose  of  fraudulently  ob- 
structing or  defeating  execution  of  the  said  decree  obtained  against 
you  by  the  said  Alexander  Dick  junior  as  aforesaid  ;  and  you  the  said 
George  Kippen  did,  on  the  said  17th  day  of  July  1848,  or  on  a  day, 
after  and  about  that  time,  to  the  prosecutor  unknown,  on  or  near 
Queen  Street  or  Exchange  Square  of  Glasgow,  opposite  or  near  to  the 
Exchange  of  Glasgow,  or  elsewhere  in  or  near  Glasgow  to  the  prose- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  283 

cutor  unknown,  in  virtue  or  on  pretence  of  the  said  warrant  or  precept     No.  46. 

of  arrestment  contained  in  the  said  false  and  fraudulent  summons  last    ^?ppf°_ 

above  libelled,  cause  or  procure,  to  be  served  on  you  by  James  Christi-  — -— — : 
,      ,  . ,.       •  T.  •  1    T.1         HighCourt. 

son,,  sheriff -ofiBcer,  now  or  lately  residmg  in  or  near  Brunswick  rlace,     jj^y^  g. 

in  or  near  Glasgow,  an  arrestment,  in  name  of  said  William  Colquhoun,  ^849. 
fencing  and  arresting,  or  pretending  to  fence  and  arrest,  all  sums  of  Falsehood, 
money,  goods,  and  effects,  in  your  hands,  belonging  to  the  said  Alex-  Fraud,  &o. 
ander  Dick  junior,  and  that  to  an  extent  not  exceeding  £8:6:8;  and 
all  this  you  the  said  George  Kippen  did  in  pursuance  of  the  wicked 
and  felonious  purpose,,  formed  by  you  as  aforesaid,  of  obstructing  or 
defeating  execution  of  the  said  decree  obtaineiTby  the  said  Alexander 
Dick  junior  against  you,  and  to  the  lesion,  injury,  and  oppression,  of 
the  said  Alexander  Dick  junior ;  and  in  farther  prosecution  of  the  said 
wicked  and  felonious  purpose,  last  above  libelled,  you  the  said  George 
Kippen  did,  on  the  18th  day  of  July  1848,  or  about  that  time,  in  or 
near  the  said  house  or  office  in  or  near  Fife  Place  aforesaid,  or  in  or 
near  the  said  sheriff-clerk's  office,  or  elsewhere  in  or  near  Gla^ow  to 
the  prosecutor  unknown,  wickedly,  fraudulently,  and  feloniously,  raise, 
or  cause  to  be  raised,  before  the  ordinary  Sheriff-Court  of  Glasgow,  a 
summons  of  multiplepoinding  at  your  instance,  against  the  said  Alex- 
ander Dick  junior  and  the  said  William  Colquhoun,  and  another  per- 
son therein  designed  '  David  Thomas  carter  and  cowfeeder  in  Trades- 
'  ton  of  Glasgow,'  setting  forth  the  said  decree  at  the  instance  of  the 
said  Alexander  Dick  jiinior,  and  said  charge  thereon,  and  that  you 
were  not  in  safety  to  make  pajmient  of  the  sums  contained  in  said  de- 
cree, in  respect  of  an  arrestment  at  the  instance  of  the  said  David 
Thomas,  designed  as  aforesaid,  and  of  the  said  arrestment  in  name  of 
the  said  William  Colquhoun,  and  concluding  that  you  the  said  George 
Kippen  should  be  found  liable  in  once  and  single  payment  only,  and 
under  the  deduction  of  the  expenses  incurred  by  you  in  the  process  to 
follow  thereon,  which  summons  of  multiplepoinding,  last  above  libelled, 
in  so  far  it  is  founded  on  the  said  arrestment,  at  the  instance  of  the 
said  William  Colquhoun,  was  a  fraudulent  and  felonious  proceeding  on 
the  part  of  you  the  said  George  Kippen,  and  was  to  the  lesion,  injury, 
and  oppression,  of  the  said  Alexander  Dick  junior :  And,  you  the  said 
George  Kippen,  during  the  whole  course  of  your  said  false  and  fraudu- 
lent proceedings  above  libelled,  were  a  practitioner  of  the  law,  and  a 
procurator  of  the  Sheriff-Court  of  Lanarkshire,  at  Glasgow,  and  pos- 
sessed thereby  facilities,  and  did  avail  yourself  of  the  same,  for  devis- 
ing and  carrying  on  the  said  frauds. 

Logan  objected  to  the  relevancy  of  the  libel.  The 
major  charged  falsehood  and  fraud,  aggravated  as  de- 
scribed. The  word  especially  applied  to  the  aggravations. 
That  was  clear  from  the  Subsumptions  of  the  libel ;  and 


284  CASES  BEFORE  THE  HIGH  COURT 

No.  46.    the  objection  was,  that  the  charges  in  the  minor  did  not 

Kippen.   answer  to  the  principal  crime  alleged,  but  only  to  the 
High  Court-  aggravations. 

\°U9.'        In  the  first  charge,  it  was  set  forth,  that  '  you  the  said 
Falsehood,  '  Gcorgo  Kippeu  having  formed  the  wicked  and  felonious 

rau  ,  c.  ,  purpose  of  obstructing  or  defeating  execution  of  the  said 
*  warrant,  did,'  &c.  It  was  not  charged  that  this  was  frau- 
dulently done ;  nothing  more  followed  than  a  mere  detail 
of  the  modus  operandi  in  which  the  pannel  was  said  to 
have  carried  out  his  plan,  which  was  not  distinctly  aver- 
red to  have  been  either  false  or  fraudulent.  No  doubt 
the  minor  answered  to  the  alleged  aggravation,  but  the 
objection  was,  it  did  not  come  up  to  the  principal 
crime.  At  any  rate,  it  amounted  to  falsehood  only, 
and  not  to  fraud.  Falsehood  per  se  was  not  a  crime.  In 
all  cases  fraud  had  been  joined,  and  this  shewed  that 
the  falsehood  was  no  crime,  unless  it  had  taken  effect. 
{Gibh's  case.  Bell's  Notes,  p.  64.)  This  was  rendered 
still  more  apparent  from  the  case  of  M^Intyre  (Inverness, 
Sept.  14.  1837,  Swinton,  vol.  i.,  p.  536),  where  it  was 
held,  that  where  imposition  was  charged  in  the  major,  it 
must  be  alleged  in  the  minor  that  it  took  effect.  Case 
of  Christie  (High  Court,  March  12.  1841,  Swinton, 
vol.  ii,  p.  534.)  The  objection  there  went  to  the  undue 
latitude  taken  by  the  prosecutor,  but  the  principle  of  the 
case  was  the  same  as  that  of  M'Intyre,  and  was  more- 
over a  precedent  as  to  the  form  of  libel  necessary  in  a 
case  of  the  kind.  So  also  in  the  case  of  Miller  (Jed- 
burgh, Sept.  1847,  Arkley,  p.  355),  where  falsehood, 
fraud,  and  wilful  imposition  were  charged,  it  was  alleged 
that  the  imposition  was  effectual.  The  minor  in  this 
case  did  not  allege  any  completed  fraud,  and  consequently 
did  not  answer  to  the  principal  charge  in  the  major,  how- 
ever it  might  correspond  to  the  aggravations  set  forth, 
Avhich  could  not  be  regarded  unless  the  principal  charge 
was  relevantly,  laid. 

LoED  MoNCREiFP. — The  authorities  do  not  come  up 
to  the  point  pressed  upon  us.     The  objection  resolves  it- 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  285 

iself  into  this,  that  the  attempted  fraud  was  not  success-    No.  46. 

George 

ful.     In  judging  of  the  relevancy,  however,  we  must    Kippen. 


attend  to  the  special  circumstances  of  each  case,  and  High  Court. 
examine  the  precedents  in  the  same  way.    Now,  here  all     ms.' 
the  overt  acts  set  forth  are  said  to  have  been  committed  Falsehood, 
with  a  criminal  intent,  and  for  an  unlawful  design.   This,  ^^^^^'  *"'• 
in  my  opinion,  is  enough.     No  doubt,  in  the  Jedburgh 
case,  it  was  alleged  that  the  fraud  was  effectual,  but  then 
the  facts  warranted  the  insertion  of  that  allegation.    But 
that  case  did  not  decide  that  it  must  in  all  cases  be 
charged  that  success  followed  the  criminal  attempt,  in 
order  to  render  the  party  amenable  to  the  law.    I  do  not 
think  it  necessary ;  and,  indeed,  in  the  case  of  M'lntyre 
we  have  quite  sufficient  to  warrant  us  in  so  holding. 

Lord  Cockbuen. — I  concur  in  what  has  fallen  from 
Lord  Moncreiff,  and  think  this  objection  must  be  re- 
pelled. I  may  add,  however,  that  in  this  case  there  is 
enough  set  forth  to  meet  the  argument  of  the  prisoner's 
counsel,  even  supposing  it  in  all  respects  sound.  It  is 
alleged  that  he  formed  a  fraudulent  purpose  of  obstruct- 
ing or  defeating  diligence,  at  the  instance  of  various  par- 
ties, and  the  modes  by  which  he  proceeded  to  carry  his 
intention  into  effect  are  set  forth.  It  is  also  said  that  the 
arrestment  took  effect,  and  thereby  the  obstruction,  which 
was  his  object,  was  completed,  which  is  said  to  have  been 
to  the  lesion,  injury,  and  oppression  of  the  parties.  I  am 
of  opinion,  on  this  ground,  as  well  as  on  those  stated  by 
Lord  Moncreiff,  that  this  objection  must  be  repelled. 

The  LoED  Justice-Cleek. — The  objection  only  amounts 
to  this,  that  in  all  cases  of  fraud  it  is  necessary  to  allege 
that  the  attempt  was  successful.  For  the  reasons  given 
by  Lord  Moncreiff,  I  do  not  concur  in  that  view.  It  is 
said  that  the  minor  answers  only  to  the  aggravations,  but 
this  proceeds  on  a  mistake  of  the  meaning  of  the  word 
'  especially,'  as  used  in  the  major.  Formerly  the  word 
'  particularly'  would  have  been  used.  But  though 
•  especially'  is  now  the  word  employed,  yet  that  does  not 
change  the  meaning  of  the  libel.     Practically,  its  mean- 


286  CASES  BEFORE  THE  HIGH  COURT 

No.  46.    ingf  is  to  set  forth  and  define  the  particular  mode  in 

George         °  i  i  •  • 

Kippen.    which  the  crime  was  committed,  the  law  taking  cogniz- 


HighCum-t.  ance  that  particular  modes  constitute  substantive  aggra- 

Nov,  6. 

1849."  rations.  Here,  however,  I  think  the  fraud  alleged  is 
Falsehood,  shewn  to  havc  been  completed.  The  object  was  not  to 
*"  '  "■  cheat  any  person,  but  to  delay  payment  of  a  debt  which 
was  due  from  him,  by  means  of  an  unlawful  device. 
Everything  necessary  to  this  object  is  said  to  have  been 
done  by  him  fraudulently  and  feloniously ;  and  as  delay 
was  the  object  he  wished,  so  it  is  said  that  delay  was  ob- 
tained, as  is  alleged,  to  the  injury  and  lesion  of  the  cre- 
ditors. In  these  circumstances,  the  objection  must  be 
repelled. 

Thei'eafter  the  pannel  pleaded  guilty  to  the  third 
charge,  except  in  so  far  as  related  to  the  person  of  the 
name  of  Burnside,  and  to  the  fourth  charge,  as  libelled. 

LoQAN"  addressed  the  Court  in  mitigation  of  punish- 
ment, and  asked  their  Lordships  to  impose  a  fine,  either 
as  the  whole  or  part  of  the  sentence. 

The  Lord  Justice-Clerk. — In  such  a  case  as  this,  it 
is  altogether  out  of  question  to  think  of  a  fine ;  and  it  is 
of  great  importance  that  the  public  should  know,  that  in 
all  such  cases  the  Court  will  imprison  or  transport,  and 
not  impose  a  fine.  I  remember  that  in  the  Glasgow 
case,  when  we  imposed  a  fine,  which  we  were  assured, 
would  be  paid,  the  pannel  got  himself  declared  bankrupt 
the  day  after. 

In  respect  of  the  judicial  confession  above  set  forth, 
the  said  George  Kippen  was  sentenced  to  nine  months' 
imprisonment. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  287 

WINTER  CIRCUIT. 

GLASGOW.  ^]%l}- 

Jvdges — Lokds  Cockburn  and  Ivory. 
Her  Majesty's  Advocate — Young  A.D. 

AGAINST 

John  Stevens — W.  H.  Thomson — A.  B.  Clark. 

Murder. — Held,  that  it  was  not  a  good  plea  in  bar  of  trial,  that  the 
pannel  had  been  tried  and  convicted  of  a  simple  assault  in  the  Police 
Court,  for  striking  the  same  blows  in  respect  of  which  he  was 
charged  with  murder. 

John  Stevens  was  charged  with  Murder :  No.  47. 

John 

Stevens. 


In  so  FAB  AS,  on  the  17th  day  of  November  1849,  or  on  one  or  other  - 
of  the  days  of  that  month,  or  of  October  immediately  preceding,  or  of    ja^^ii[' 
December  immediately  following,  in  or  near  the  bouse  in  or  near  Bishop      1850. 
Street  of  Anderston,  in  or  near  Glasgow,  then  and  now  or  lately  occu-    Murder, 
pied  by  Alexander  Bobison,  a  bottle-blower  or  labourer,  then  and  now 
or  lately  residing  there,  in  which  house  you  the  said  John  Stevens  and 
the  since  deceased  Alice  M'Donald  or  Stevens  your  wife,  or  with  whom 
you  cohabited,  then  lodged  or  resided,  you  the  said  John  Stevens  did, 
wickedly  and  feloniously,  attack  and  assault  the  said  Alice  M'Douald 
or  Stevens,  and  did,  with  a  poker  or  some  other  weapon  to  the  prose- 
cutor unknown,  strike  her  one  or  more  severe  blows  on  or  near  the 
head,  whereby  she  was  knocked  down,  and  was  mortally  injured,  and 
died  on  the  30th  day  of  November  1849,  or  about  that  time ;  and  was 
thus  murdered  by  you  the  said  John  Stevens. 

On  the  diet  being  called  it  was  objected  in  bar  of  trial, 
that  the  pannel  had  been  tried  and  sentenced  in  the  Po- 
lice Court,  in  respect  of  striking  the  very  blows  which 
were  said  to  have  occasioned  death  in  the  present  charge. 
That  constituted  a  res  judicata,  and  if  the  public  autho- 
rities had  been  too  precipitate  in  trying  as  a  police  oifence 
what  was  ultimately  found  to  be  of  a  more  serious  cha- 
racter, they  must  abide  the  consequence,  and  not  the 
prisoner,  who  had  no  control  over  their  proceedings. 


No.  47. 

John 

Stevens, 


Glasgow. 

Jan.  11. 

18S0. 


288 


CASES  BEFORE  THE  HIGH  COURT 


Young  A.  D. — The  objection  stated  could  not  be  sus- 
tained after  the  judgment  in  the  case  of  Cobb,  High  Court, 
Nov.  21.  1836,  Swinton,  vol.  i.,  p.  354. 

Lord  Cockbuen  repelled  the  objection  on  the  autho- 
Murder.   Tity  of  the  case  of  Cobb. 

The  pannel  thereafter  pleaded  Guilty  of  Culpable  Ho- 
micide. 


In  respect  of  which  judicial  confession,  he  was  senten- 
ced to  be  transported  for  life. 


Jan.  3. 

1850. 


HIGH    COURT. 

Present, 
The  Lord  Justice-Clerk, 

Lords  Mackenzie  and  Moncreiff, 
Her  Majesty's  Advocate — £>eas  A.D. — G.  Young  A.D. 


Archibald  Miller  and  Susan  Brown  or  Miller — Logan — Shand. 

Trial,  bar  of. — Opinion  intimated,  that  it  was  not  a  good  objection 
in  bar  of  trial,  that  the  Procurator -fiscal  had  obtained  information 
from  the  pannel  under  a  pledge  that  she  should  not  be  tried. 

Outlawry. — Held,  that  an  outlawry  was  recalled  dejure  by  the  Pub- 
lic Prosecutor  arraigning  the  pannel  at  the  bar. 

No.  48.  Archibald  Miller,  a  flesher,  and  Susan  Brown  or 
■*^susan°'^  Miller,  were   charged   with   Using  and   Uttering,  as 

'^''^^''-  genuine.  Forged  or  Counterfeit  Bank  Notes ;  as  also 
^'|^^<^°^'''- Theft,  also  Reset  of  Theft,  and  contravention  of  the  Sta- 

1850.'    tute  45th  Geo.  III.  c.  89  : 

Forgery, 
&c. 

In  so  far  as  (1.),  on  the  5th  day  of  March  1849,  or  on  one  or  other 

of  the  days  of  that  month,  or  of  February  immediately  preceding,  or  of 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  289 

April  immediately  following,  within  or  near  the  dwelling-house,  shop,  No.  48. 

or  premises  situated  in  or  near  Canongate,  in  or  near  Edinburgh,  then  gujan 

or  lately  before  occupied  by  you  the  said  Archibald  Miller  aud  Susan  Miller. 


Brown  or  Miller,  or  by  one  or  other  of  you,  and  within  or  near  the  HighCourt. 
dwelling-house,  shop,  or  premises  situated  in  or  near  High  Street,  in     Jan.  3. 

or  near  Edinburgh,  then  occupied  by  James  Mackay,  then  a  grocer  and  ! — 

spirit-dealer  there,  and  now  or  lately  a  prisoner  in  the  prison  of  Edin-  ^°^^^t 
burgh,  or  within  or  near  one  or  other  of  the  said  dwelling-house,  shop, 
or  premises  situated  in  or  near  Canongate  aforesaid,  and  the  said 
dwelling-house,  shop,  or  premises  situated  in  or  near  High  Street  afore- 
said, or  at  some  other  place  or  places  in  or  near  Edinburgh  to  the  pro- 
secutor unknown,  you  the  said  Archibald  Miller  and  Susan  Brown  or 
Miller,  or  one  or  other  of  you,  knowingly  or  wittingly,  had  in  your 
possession  or  custody,  or  in  your  dwelling-house,  outhouse,  lodgings, 
or  apartments,  situated  in  or  near  Canongate  aforesaid,  six,  or  thereby, 
forged  or  counterfeited  Bank  of  England  notes  for  £I0  each,  and  each 
bearing  to  be  dated  '  London  4  Oct  1848,'  and  to  be  subscribed  '  For 
'  the  Gov''  and  Comp»  of  the  Bank  of  England.  J.  Cann,'  or  one 
or  more  of  them,  knowing  the  same  to  be  forged  or  counterfeited,  with- 
out lawful  excuse :  Likbas  (2.),  time  above  libelled,  within  or  near 
the  shop  or  premises  situated  in  or  near  Leith  Street,  in  or  near  Edin- 
burgh, then  and  now  or  lately  occupied  by  William  Eutherford,  then 
and  now  or  lately  spirit-merchant  there,  and  within  or  near  the  said 
dwelling-house,  shop,  or  premises  situated  in  or  near  Canongate  afore- 
said, then  or  lately  before  occupied  by  you  the  said  Archibald  Miller 
and  the  said  Susan  Brown  or  Miller,  or  by  one  or  other  of  you,  and  with- 
in or  near  the  office  or  premises  situated  in  or  near  Parliament  Square, 
in  or  near  Edinburgh,  then  aud  now  or  lately  occupied  by  the  Union 
Bank  of  Scotland,  or  by  the  Banking  Company  carrying  on  business 
under  that  or  some  similar  denomination,  or  within  one  or  more  of 
them,  or  at  some  other  place  or  places  in  or  near  Edinburgh  to  the  pro- 
secutor unknown,  you  the  said  Archibald  Miller,  knowingly  or  wit- 
tingly, had  in  your  possession  or  custody,  or  in  your  dwelling-house, 
outhouse,  lodgings,  or  apartments,  situated  in  or  near  Canongate  afore- 
said, two,  or  thereby,  forged  or  counterfeited  Bank  of  England  notes 
for  £10  each,  and  each  bearing  to  be  dated  '  London  4  Ocf  1848,'  and 
to  be  subscribed  '  For  the  Gov'  and  Comp*  of  the  Bank  of  England. 

'  J.  Carin,'  and  bearing  to  be  numbered  respectively  '  f^  46506,'  and 

'  -r^  56045,'  or  one  or  more  of  them,  knowing  the  same  to  be  forged 

or  counterfeited,  without  lawful  excuse  :  Likeas  (3.),  time  above  libel- 
led, within  or  near  the  said  shop  or  premises  situated  in  or  near  Leith 
Street  aforesaid,  then  and  now  or  lately  occupied  by  the  said  William 
Rutherford,  and  within  or  near  the  said  dwelling-house,  shop,  or  pre- 
mises, situated  in  or  near  Canongate  aforesaid,  then  or  lately  before 


290  CASES  BEFORE  THE  HIGH  COURT 

No.  48.  occupied  by  you  the  said  Archibald  Miller  and  the  said  Susau  Brown 
&isan°  or  Miller,  or  by  one  or  other  of  you,  and  within  or  near  the  office  or 
Miller,  premises  sijiuated  in  or  near  George  Street,  in  or  near  Edinburgh,  then 
High  Court,  and  now  or  lately  occupied  by  the  Commercial  Bank  of  Scotland,  or 
Jan.  3.     ijy  tjig  banking  company  carrying  on  business  under  that  or  some  simi- 

! lar  denomination,  or  within  or  near  one  or  more  of  them,  or  at  some 

■Forgery,  ^^-^er  place  or  places  iu  or  near  Edinburgh  to  the  prosecutor  unknown, 
you  the  said  Archibald  Miller,  knowingly  or  wittingly,  had  in  your 
possession  or  custody,  or  in  your  dwelliflg-house,  outhouse,  lodgings,  or 
apartments,  situated  in  or  near  Oanongate  aforesaid,  two,  or  thereby, 
forged  or  counterfeited  Bank  of  England  notes  for  £lO  each,  and  each 
bearing  to  be  dated  '  Loudon  4  Ocf  184S,'  and  to  be  subscribed  '  For 
'  the  Gov  and  Comp*  of  the  Bank  of  England.     J.  Cann,'  and  to  be 

numbered  '  j^  54064,'  or  one  or  more  of  them,  knowing  the  same  to  be 

forged  or  counterfeited,  without  lawful  excuse :  Likeas  (4),  time  above 
libelled,  within  or  near  the  office  or  premises  situated  in  or  near  Par- 
liament Square  aforesaid,  then  and  now  or  lately  occupied  by  the  Union 
Bank  of  Scotland,  or  by  the  banking  company  carrying  on  business 
under  that  or  some  similar  denomination,  you  the  said  Archibald  Miller 
did,  wickedly  and  feloniously,  use  and  utter,  as  genuine,  two  forged  or 
counterfeited  Bank  of  England  notes  for  £]  0  each,  and  each  bearing 
to  be  dated  '  London  4  Oct'  1848,'  and  to  be  subscribed  '  For  the 
'  Gov'  and  Comp*  of  the  Bank  of  England.     J.  Cann,'  and  bearing  to 

numbered  respectively  '  -rr  46506,'  and  '  -j-,  56045,'  you  knowing  the 

same  to  be  forged  or  counterfeited,  by  then  and  there  delivering  the 
same,  or  causing  the  same  to  be  delivered,  to  Robert  Robertson  Mur- 
ray, then  and  now  or  lately  a  teller  in  the  employment  of  the  said 
Union  Bank  of  Scotland,  or  banking  company  carrying  on  business 
under  that  or  some  similar  denomination  as  aforesaid,  and  then  and  now 
or  lately  residing  with  Mrs  Ann  Gray  or  Murray,  in  or  near  Lauris- 
ton  Place,  in  or  near  Edinburgh,  or  to  some  other  person  or  persons  to 
the  prosecutor  unknown,  in  the  employment  of  the  said  last-mentioned 
bank  or  banking  company,  in  order  to  be  changed,  you  then  and  there 
received  in  exchange  for  the  same  twenty  pounds  sterling,  or  thereby, 
in  notes  of  the  said  last -mentioned  bank  or  banking  company,  or  in 
other  genuine  money  :  Likbas  (5.),  time  above  libelled,  within  or  near 
the  office  or  premises  situated  in  or  near  George  Street  aforesaid,  then 
and  now  or  lately  occupied  by  the  Commercial  Bank  of  Scotland,  or 
by  the  banking  company  carrying  on  business  under  that  or  some  simi- 
lar denomination,  you  the  said  Archibald  Miller  did,  wickedly  and 
feloniously,  use  and  utter,  as  genuine,  two  forged  or  counterfeited  Bank 
of  England  notes  for  £10  each,  and  each  bearing  to  be  dated  '  London 
'  4  Oct'  1848,'  and  to  be  subscribed  '  For  the  Gov'  and  Comp»  of  the 

'  Bank  of  England.     J.  Cann,'  and  to  be  numbered  '  -jj-    54064,'    you 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  291 

Itnowitig  the  same  to  be  forged  or  counterfeited,  by  then  and  there  de-  ^^"^^^^^ 
livering  or  presenting  the  same,  or  causing  the  same  to  be  delivered  or      Susan 
presented,  to  William  Leckie,  then  and  now  or  lately  a  teller  or  cashier     'Mmev.. 
in  the  employment  of  the  said  Commercial  Bank  of  Scotland,  or  bank-  High  Court, 
ing  company  carrying  on  business  under  that  or  some  similar  denorai-       ^^50/ 

nation  as  aforesaid,  and  then  or  now  and  lately  residing  in  or  near  — 

Picardy  Place,  in  or  near  Edinburgh,  in  order  to  be  changed,  and  you  °&eT^' 
proposing  to  receive  in  exchange  therefor  twenty  pounds  sterling,  or 
thereby,  in  the  notes  of  the  last-mentioned  bank  or  banking  company, 
or  other  genuine  money:  Likeas  (6.),  on  the  night  of  the  11th,  or 
morning  of  the  12th,  day  of  September  1849,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  August  immediately  preceding,  or  of  October 
immediately  following,  within  or  near  the  house  situated  iu  or  near 
Blackfriars'  "Wynd,  in  or  near  Edinburgh,  then  occupied  by  some  per- 
son or  persons  to  the  prosecutor  unknown,  and  now  or  lately  occupied 
by  Walter  Sawers  or  Sayers,  now  or  lately  residing  there,  or  at  some 
other  place  in  or  near  Edinburgh,  to  the  prosecutor  unknown,  you 
the  said  Archibald  Miller  by  yourself,  or  aided  and  abetted  by  two  or 
more  females,  or  other  persons  to  the  prosecutor  unknown,  did,  wick- 
edly and  feloniously,  steal  and  theftuously  away  take,  from  or  from 
near  the  pocket  or  person  of  the  Reverend  William  Anderson,  then 
and  now  or  lately  minister  of  the  United  Presbyterian  Church  at  or 
near  Blalrlogie,  in  the  parish  of  Logie,  and  county  of  Perth,  and  then 
and  now  or  lately  residing  there,  a  gold  watch,  the  property,  or  in  the 
lawful  possession,  of  the  said  Reverend  William  Anderson  :  Or  other- 
wise, the  said  watch  having  been,  time  and  place  above  libelled,  wick- 
edly and  feloniously,  stolen  by  some  person  or  persons  to  the  prosecu- 
tor unknown,  you  the  said  Archibald  Miller  did,  time  last  above  libel- 
led, within  or  near  the  house  situated  in  or  near  Paul  Street  aforesaid, 
now  or  lately  occupied  byyou  the  said  Archibald  Miller,  or  at  some  other 
time  and  place  in  or  near  Edinburgh,  or  elsewhere  in  or  near  the  county 
of  Edinburgh,  to  the  prosecutor  unknown,  wickedly  and  feloniously, 
reset  and  receive  the  said  stolen  watch,  you  well  knowing  the  same  to 
have  been  stolen. 

Shand,  on  behalf  of  the  female  prisoner,  objected  in 
bar  of  trial,  that  a  pledge  had  been  given  to  her  by  the 
Procurator-fiscal,  that,  in  reward  for  her  giving  informa- 
tion, she  should  not  be  tried  herself,  and  offered  to  prove 
the  fact  by  the  examination  of  the  fiscal. 

Robert  Dymock  examined,  deponed,  I  know  the  female  prisoner. 
She  was  examined  as  to  the  case  of  Mackay,  which  related  to  the 
passing  of  the  said  bank-notes,  which  is  the  foundation  of  this  charge. 
She  was  asked  if  she  would  speak  out  in  that  case.     She  came  back 


292  CASES  BEFORE  THE  HIGH  COURT 

A^ch.*and  again  ou  the  10th  of  April,  and  said  she  could  give  no  information. 

Susan      No  declaration  was  taken  from  her  as  a  witness. 
Miller. 


"'&"."*■  The  LoED  Justice-Cleek.— In  having  allowed  this 
^8^»-  examination,  we  wish  it  to  be  understood,  that  we  by  no 
Fo^ery,  means  intend  to  countenance  the  notion  that  the  Pro- 
curator-fiscal can,  without  authority,  tie  up  the  hands  of 
the  Public  Prosecutor.  It  is  not  the  policy  of  the  law  to 
give  such  a  power  to  any  inferior  officer,  and  the  parties 
giving  information  to  the  Procurator-fiscal,  must  take 
their  risk  as  to  any  pledge  he  may  be  so  ill-advised  as, to 
give. 

After  the  examination  of  the  first  witness  was  closed, 
the  Public  Prosecutor  stated,  that  the  outlawry  formerly 
pronounced  against  the  pannel,  Archibald  Miller,  remain- 
ed unrecalled,  and  thereupon  asked  his  counsel  if  he 
moved  to  have  the  outlawry  recalled. 

Logan  declined  to  make  any  motion  to  that  effect. 

Deas  thereupon  moved  that  the  outlawry  should  be 
recalled,  and  mentioned  the  case  of  Wilson,  Glasgow, 
7th  April  1830 ;  Bell's  Notes,  p.  228. 

The  Lord  Justice-Clerk. — I  am  by  no  means  satis- 
fied with  the  decision  in  that  case,  and  think  we  ought 
to  pronounce  a  special  interolcutor  here.  The  pannel 
having  known  the  objection  all  along,  ought  to  have 
stated  it  at  the  commencement  of  the  trial,  and  cannot 
take  advantage  of  an  objection  now,  which,  if  good  at 
all,  would  be  in  bar  of  trial,  and  I  propose  therefore 
that  we  should  pronounce  a  special  interlocutor  holding 
the  outlawry  recalled  de  jure,  by  the  public  prosecutor 
having  put  him  at  the  bar,  and  allowed  him  to  plead. 

The  other  Judges  concurred,  and  the  following  inter- 
locutor was  pronounced : — 

'  The  Court  held,  that  the  sentence  of  outlawry  refer- 
'  red  to  was  dejure  recalled,  in  consequence  of  the  Public 
'  Prosecutor  having  allowed  the  pannel  to  plead  to  the 
'  indictment,  and  proceed  with  the  trial,  and  found  it  re- 
•  called  accordingly.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  293 

The  case  having  proceeded,  the  Jury  found  the  charge  ^reh.  and 
against  the  female  pannel  not  proven,  and  unanimously    ^usan 
found  Archibald  Miller  guilty  of  the  3d  and  5th  charges  High  Court 
as  libelled.  fgso.' 


1  -J    A      X.'      Forgery, 

In  respect  of  which  verdict  of  assize,  the  said  Arctii-      &c. 
bald  Miller  was  sentenced  to  be  transported  for  fourteen 
years,  and  the  said  Susin  Brown  or  Miller  was  assoilzied 
simpliciter,  and  dismissed  from  the  bar. 


Present, 
Lord  Justice-Clerk,  ^      . 

Jan,  4. 
1850. 

Lords  Moncreifp  and  Wood. 
Her  Majesty's  Adyooate — Young  A.D. 

AGAINST 

Hannah  Mitchell — Boyle — Adam. 

Evidence. — Held,  distinguishing  from  the  case  of  Maclure,  Arkley, 
p.  448,  that  a  witness  who  had  been  present  at  the  examination  of 
another  witness,  was  not  disqualified  on  the  ground  of  partial  counsel, 
in  respect  tlat  it  appears  he  had  not  thereby  been  made  acquainted 
with  any  thing  of  which  he  was  not  previously  aware. 

No.  49. 

Hannah  Mitchell  was  charged  with  Child  Murder,    Hannah 
as  also  Concealment  of  Pregnancy  :  — '"  ^  ' 

°  *'  High  Court. 

Jan.  4. 
In  so  far  as,  upon  the  21st  day  of  August  1849,  or  on  one  or  other      1850. 

of  the  days  of  that  month,  or  of  July  immediately  preceding,  or  of  jjurder, 
September  immediately  following,  in  or  near  the  gig-house,  situated  Se- 
near to  the  Manse  of  Rescobie,  in  the  parish  of  Rescobie,  and  shire  of 
Forfar,  and  now  or  lately  occupied  by  the  Reverend  David  Esdaile,  now 
or  lately  minister  of  the  parish  of  Rescobie  foresaid,  or  at  some  other 
place,  to  the  prosecutor  unknown,  in  or  near  the  said  manse  of  Res- 
cobie, you  the  said  Hannah  Mitchell  having  been  delivered  of  a  living 
male  child,  did,  immediately  or  shortly  after  the  birth  of  said  child, 
and  place  above  libelled,  wickedly  and  feloniously,  strike  the  said  child 
several  blows  with  your  fist,  or  with  some  hard  substance  to  the  prose- 
cutor unknown,  or  did  otherwise  bruise  the  said  child,  by  some  means 
to  the  prosecutor  unknown,  on  the  head  and  face,  to  the  severe  injury 


294  CASES  BEFORE  THE  HIGH  COURT 

No.  49.    of  the  aairl  child,  and  did,  in  like  manner,  bruise  or  injure  the  neck  of 

Mitchell,    the  said  child,  and  did  break  one  of  its  lower  jaw-bones,  and  did  thrust 

High  Court.  7°^^  fingers,  or  some  other  substance  to  the  prosecutor  unknown,  within 

Jan  4.     the  mouth  or  throat  of  the  said  child  to  impede  its  respiration  or  stop 

1_  its  cries,  and  did  thereafter  leave  the  said  child  naked,  and  with  the 

Miwder,  umbilical  cord  untied,  in  or  near  the  gig-house  aforesaid ;  by  all  which, 
or  part  thereof,  the  said  child  was  immediately  or  speedily  bereaved  of 
life,  and  was  thus  murdered  by  you  the  said  Hannah  Mitchell :  Ok 
OTHERWISE,  time  and  place  above  •libelled,  you  the  said  Hannah 
Mitchell  did  bring  forth  a  male  child ;  and  you  did  conceal  your  being 
with  child  during  the  whole  period  of  your  pregnancy,  and  did  not  call 
for  and  make  use  of  help  or  assistance  in  the  birth,  and  the  said  child 
was  afterwards  found  dead  in  or  near  the  said  gig-Louse. 

During  the  trial,  a  witness  of  the  name  of  Steele  was 
adduced  in  behalf  of  the  Crown,  who,  being  examined  in 
initialibus,  deponed : 

'  I  am  a  surgeon.  I  know  Mrs  Ayraouth,  a  midwife,  but  I  am  not 
'  her  medical  attendant.  She  was  precognosced  as  to  the  facts  dis- 
'  covered  by  her  at  the  time  the  child  was  born  in  bed.  This  was  on 
'  this  day  week.  I  was  present  at  the  time  when  she  was  examined 
'  by  the  Procurator-fiscal,  and  attended  at  his  request.  I  heard  the 
'  whole  of  her  precognition.  There  was  at  that  time  apprehension  of 
'  her  being  in  danger.  I  was  not  present  at  a  previous  examination. 
'  She  spoke  to  finding  the  after-birth  and  body  in  the  gig-house,  and 
'  their  appearances.  Can't  say  if  she  said  that  she  examined  the  pri- 
'  soner.  I  think  she  advised  her  to  go  to  bed.  She  said  she  found 
'  the  child  unwashed.  I  suggested  no  questions,  and  got  no  informa- 
'  tion  at  that  time  which  I  had  not  previously.' 

Boyle  requested  to  see  the  deposition  of  Mrs  Aymouth, 
which  was  allowed.  He  then  objected  that  the  witness 
was  incompetent,  on  the  ground  of  partial  counsel,  and 
submitted  that  the  case  was  entirely  governed  by  that  of 
Maclure,  High  Court,  March  15.  1848 ;  Arkley,  p.  448. 

The  LoED  Justice-Clerk. — I  think  this  case  differs 
from  that  of  Maclure  in  this  respect,  that  it  appears,  as 
well  from  the  deposition  of  the  witness  that  he  did  not 
learn  anything  from  the  midwife  on  that  occasion,  of  which 
he  was  not  previously  aware,  as  also  from  the  precogni- 
tion then  taken,  that  there  was  nothing  spoken  to  more 
than  what  was  necessary  for  him  to  have  known,  in  ordeF 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  295 

to  give  a  medical  opinion.     Now,  in  the  case  of  €uhitt,    No^^9|^ 
what  was  put  before  him  was  the  state  of  the  bridge,   Mitchell. 
and  its  relative  strength  to  bear  the  velocity  of  the  en-  HighCourt. 
gine.     He  was  therefore  placed  in  the  position  of  a  jury-     i85o. 
man,  and  had  the  whole  facts  before  him.    The  rule  that   Mulder, 
excludes  witnesses  on  the  ground  of  partial  counsel  is 
not  a  statutory  one,  which  we  are  bound  to  enforce  in  all 
cases ;  and  although  there  is  no  doubt  this  was  a  very 
incautious  proceeding,  there  was  nothing  ultroneous  on 
the  part  of  the  witness,  as  he  went  by  order  ;  and  as  we 
find  that  all  he  then  heard  was  known  to  him  before  the 
time  he  made  his  medical  report,  to  which  he  is  called 
to  speak,  he  could  not  have  been  biassed  by  what  occur- 
red on  the  occasion  referred  to,  which  was  long  thereafter. 

Lord  Moncreiff  and  Lord  Wood  concurred. 

The  case  proceeded,  and  the  jury  found  the  pannel 
guilty  of  concealment  of  pregnancy. 

In  respect  of  which  verdict  of  assize,  the  Court  sen- 
tenced her  to  six  months'  imprisonment. 


Present, 
The  Lord  Justice-Clerk,  I860. 

Lords  Moncreiff,  Cockburn,  and  Wood. 
Her  Majesty's  Advocate — Deas  A.D. —  Young  A.D. 

AGAINST 

John  Cameron — Dean  of  Faculty  (M''Neill) — Neaves. 

Criminal  Letters — Double  op  List  op  Witnesses. — Held,  lat, 
That  it  was  a  fatal  objection  to  criminal  letters  that  the  list  of  wit- 
nesssea  aj%>ended  to  the  copy  served,  did  not  bear  to  be  signed  by 
the  Advocate-depute.  2nd,  That,  after  a  pannel  had  been  declared 
exempt  from  trial,  on  the  above  objection,  he  could  not  competently 
be  detained  until  fresh  criminal  letters  could  be  served. 

John  Cameron  was  charged  on  criminal  letters  with    no.  so. 
Murder : 


John 
Cameron. 


In  so  PAR  AS,  on  the  night  of  the  lUh,  or  morning  of  the  12th,  day  HighCoiu-t. 
of  August  1849,  or  on  one  or  other  of  the  days  of  that  month,  or  of    ^^^^' 

Murder. 


296  CASES  BEFORE  THE  HIGH  COURT 

No.  oO.     July  immediately  preceding,  or  of  September  immediately  following, 

„  ''°^"'      in  or  near  Little  Dovehill  Street,  in  or  near  Glasgow,  the  said  John 
Cameron.  •  r-      .  '  _  ,.  ij,    »  * 

— Cameron  did,  wickedly  and  feloniously,   attack   and  assault  leter 

"j^^^gil"'"  M'Gill,  since  deceased,  then  or  lately  before  a  boot-closer,  and  then  or 
18S0.  lately  before  residing  in  or  near  Little  Dovehill  Street  aforesaid,  with 
Murder,  his  father,  Thomas  M'Gill,.  a  shoemaker,  then  and  now  or  lately  re- 
siding there,  and  did,  with  a  stick  or  some  other  weapon  to  the  prose- 
cutor unknown,  strike  him  one  or  more  severe  blows  on  or  about  the 
head  or  other  part  or  parts  of  his  person,  whereby  he  was  knocked 
down,  and  did  kick  him  when  down,  and  did  otherwise  maltreat  and 
abuse  him  ;  by  all  which,  or  part  thereof,  the  said  Peter  M'Gill  was 
mortally  injured,  and  in  consequence  died  on  or  about  the  16th  day  of 
August  1849,  and  was  thus  murdered  by  you  the  said  John  Cameron. 

Neaves  objected  in  bar  of  trial,  on  the  ground  that  there 
was  a  discrepancy  between  the  record  and  the  copy  served 
on  the  pannel.  The  list  of  witnesses  did  not  bear  to  be 
signed  by  the  pubUc  prosecutor,  whilst  the  principal 
copy  was  so  signed.  It  had  been  the  immemorial  prac- 
tice to  authenticate  the  list  of  witnesses  and  assize  as 
part  of  the  record  ;  and  by  the  act  of  adjournal  9th  July 
1821,^  it  was  required  that  full  doubles  must  be  served 

^  '  That  all  parties  accused  shall  be  served  with  full  doubles  of  their 
'  indictment  on  criminal  letters  to  the  will,  of  the  list  of  witnesses' 
'  names  and  designations  to  be  adduced  against  them,  and  of  the  list 
'  of  the  assizers'  names  and  designations  who  are  to  pass  upon  their 
'  assize,  with  a  short  copy  of  charge  subjoined  thereto :  That  the  afore- 
'  said  full  doubles  and  copies  of  charge  shall  be  subscribed  by  the  officer 
'  executing  the  same  on  each  page,  and  the  execution  returned  by  him 
'  shall  bear  that  they  were  so  subscribed,  and  declare  that  it  shall  be 
'  no  objection  to  such  doubles  that  they  are  written  bookways :  And 
'  the  said  Lords  do  further  declare,  that  all  objections  founded  upon 
'  the  alleged  omission  in  the  said  doubles  of  any  part  of  the  record,  or 
'  upon  any  discrepancy  between  the  said  doubles  and  the  record,  must 
'  be  proposed  before  the  Jury  is  sworn  to  try  the  case,  with  certifica- 
'  tion  that  no  such  objection  shall  thereafter  be  entertained :  And 
'  further,  the  said  Lords  direct  and  appoint  that  the  Sheriff  and 
'  Sheriff-clerks  of  the  several  counties  respectively,  shall  take  special 
'  care  that  the  doubles  of  all  criminal  libels,  lists  of  witnesses,  and  lists 
'  of  assizers  to  be  served  on  parties  accused,  be  accurately  compared 
'  with  the  record  in  all  respects,  and  written  out  in  a  clear  and  legible 
'  hand,  before  delivery  to  the  officer  for  execution  ;  and  shall  further 
'  direct  the  said  officer  to  subscribe  each  page  of  the  said  doubles,  and 
'  to  certify  the  same  in  the  return  of  the  execution  of  citation,  in  terms 
'  of  this  act ;  for  the  exact  performance  of  which  duty,  the  Sheriff  and 
Sheriff-clorks  are  by  law  responsible.' 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  297 

on  the  pannels.     The  same  objection  had  been  sustained    No.jS^o. 
in  former  cases ;  Hume,  vol.  ii.,  p.  247,  and  cases  there  camei-on. 
cited:  also  p.  251,  and  cases  there  cited.     It  was  the  iiighComt. 
latter  case  that  led  to  the  passing  of  the  9th  Geo.  IV.,     ]85o. 
ch.  22,  the  15th  section  of  which  act  now  regulated  the    Murdei-. 
assize,  but  no  alteration  was  thereby  made  in  reference 
to  the  service  copy.     Hume,  who  published  the  last  edi- 
tion of  his  book  after  the  passing  of  that  act,  and  Alison, 
p.  320,  both  state  that  the  list  of  witnesses  served  on  the 
pannel  must  bear  that  the  original  was  signed  by  the 
public  prosecutor,  and  that  it  contains  a  correct  copy  of 
his  signature. 

Young  stated  that  the  authorities  quoted  were  all 
prior  to  the  9th  Geo.  IV.,  and  that,  except  the  case  of 
Sutherlnnd,  they  were  all  cases  in  the  Circuit  Court ;  and 
that  there  were  no  means  of  knowing  on  what  ground 
the  judgments  were  founded. 

He  admitted  that  the  practice  existed,  but  it  was 
necessary  to  look  into  the  origin  of  the  practice,  because 
there  was  room  for  drawing  a  sound  distinction  between 
the  case  where  a  practice  established  a  real  privilege  and 
advantage  in  favour  of  the  pannel,  in  which  case  it  would 
be  incompetent  to  inquire  into  its  origin,  and  the  case 
where  the  practice  existed,  not  with  regard  to  anything 
substantial,  in  which  case  it  could  give  no  right,  because 
the  public  had  no  interest  in  its  maintenance. 

That  in  this  case  the  practice  existed  with  reference 
to  a  matter  quite  immaterial,  and  was  not  founded  on 
any  statute  or  act  of  adjournal. 

The  act  1672,  c.  16,  was  the  act  by  which  the  pannel 
was  entitled  to  a  list  of  witnesses,  and  of  the  assize  ;  but 
there  was  not  one  word  of  a  copy  there.  Immediately 
after  the  passing  of  that  act,  a  number  of  objections  were 
stained  by  pannels,  that  they  had  not  got  proper  lists  Of 
w^nesses,  and  three  years  afterwards  another  act  of  ad- 
journal passed  (1675),  but  in  this  act  nothing  was  said 
of  a  '  copy'  being  required.  Then  the  question  arose,  if 
the  pannel  was  entitled  to  have  more  than  the  names  of 
witnesses.     It  was  held  that  he  was  not  only  entitled  to 


298  CASES  BEFORE  THE  HIGH  COURT 

No.  SO.    tlie  names,  but  also  to  the  designations.     This  shewed 

Cameron,  that  a  double  was  not  what  was  originally  intended,  be- 

High'com-t.  cause  the  question  if  it  was  sufficient  to  give  the  names 

Jan-  31-  ,  ,  ,  .        ,  1  •  rri 

1850.     only  could  not  in  that  case  have  arisen.     Ine  same  was 
Murder,   the  case  under  the  acts  of  adjournal  1803,  1818.     The 
act  by  which  a  copy  was  first  ordered  to  be  given,  was 
the  act  of  adjournal  9th  JulyJ.S21. 

Hume  (p.  251),  in  referring  to  the  case  of  Highat, 
gives  as  the  reason  for  the  objection  being  sustained  in 
these  cases,  that  the  pannel  was  entitled  to  believe  that 
witnesses  were  not  properly  cited.  This  argument  would 
not  hold  now,  as  by  the  act  9th  Geo.  IV.,  c.  29,  ^  10,  it 
was  enacted  that  the  objection  must  be  before  the  jury 
are  sworn. 

The  pannel  had  no  interest  to  object  to  the  list  of 
witnesses  not  being  signed.  He  had  got  a  list  of  wit- 
nesses, and  no  one  not  there  could  be  examined  against, 
him.  If  the  prosecutor  was  willing  to  take  the  risk  of 
witnesses  attending,  he  might  do  so,  but  what  was  the 
pannel's  interest  ?  No  witness  could  be  added  to  the  list 
of  witnesses  in  the  pannel's  possession.  The  check  was 
as  complete  as  could  be. 

Lord  Justice-Clerk. — If  it  is  material  to  list  of  wit- 
nesses that  it  be  signed,  is  it  not  necessary  to  give  copy 
of  this  to  the  pannel  ?  In  last  act  passed  (1848),  which 
has  marked  application,  there  is  a  provision  dispensing 
with  Judges'  signature  to  the  list  of  assize,  but  nothing 
is  dispensed  with  at  all  as  to  list  of  witnesses. 

Young. — It  was  not  essential  that  everything  in  the 
principal  should  be  given  in  the  copy.  Many  things  mate- 
rial in  principal  need  not  be  given  in  copy.  It  was  mate- 
rial that  the  foot  of  each  page  should  be  signed,  but  it  was 
not  the  practice  to  give  the  process  copy  of  signature 
at  each  page.  Nothing  was  more  material  than  the  will 
of  criminal  letters,  but  it  was  not  necessary  to  give  a  copy 
of  it.  The  question  arose  in  the  case  of  Charteris  (Hume, 
p.  245),  in  which  it  was  hfeld  not  necessary  to  give  the 
pannel  a  copy  of  it. 

Lord  Justice-Clerk. — The  will  is  the  diligence,  and 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  299 

used  to  be  separate  from  the  body.     It  resembled  the    No-^^s^o. 
old  precept  of  a  charter.  Civmeron. 

Young. — The  will  was  a  part  of  the  letters.    There  Highcom-t. 
could  be  no  letters  without  a  will.     It  was  held  iu  that     isso. ' 
case  not  necessary  to  give  a  copy,  on  the  ground  that  it   Murder. 
was  pure  matter  of  form.     This  shewed  that  what  was 
material  in  the  principal  need  not  necessarily  be  given 
in  the  copy ;  and  it  could  not  be  material  for  the  pannel's 
interest,  that  he  should  get  the  information  that  the  list 
of  witnesses  was  signed  by  the  prosecutor. 

LoED  MoNCREiFF. — I  do  not  see  how  we  can  go  against 
what  is  admitted  to  be  the  practice. 

Lord  Cockburn. — It  is  perfectly  clear  that  the  pan- 
nel  is  entitled  to  have  served  on  him  a  copy  of  the  list 
of  witnesses  with  the  prosecutor's  signature. 

Lord  Wood. — I  think  it  unnecessary  to  say  anything ; 
the  practice  is  quite  conclusive. 

Lord  Justice-Clerk. — I  entirely  concur.  The  argu- 
ment went  only  to  shew  that  one  of  the  reasons  assigned 
for  the  decisions  quoted  did  not  now  apply.  But  there 
is  another  important  point  in  this  case.  By  the  second 
branch  of  act  of  adjournal  1821 ,  Sheriffs  are  responsible 
for  this  being  done ;  and  I  think  that  the  attention  of 
the  Sheriff  of  Lanark  should  be  specially  called  to  this 
case. 

The  Court  sustained  the  objection. 

Deas  moved  the  -Court,  that  the  pannel  might  be  de- 
tained until  fresh  criminal  letters  could  be  served.  The 
statute  1701  did  not  prevent  the  prosecutor  from  again 
serving  the  same  letters,  except  the  will.  The  will  was 
not  incorporated  as  part  of  the  letters.  It  was  merely  dili- 
gence, and  might  be  renewed  as  a  re-service  of  an  indict- 
ment. It  was  an  erroneous  assumption  that  there  was 
no  difference  between  defects  of  service  and  of  substance. 
Here  the  defect  was  one  in  service,  rendering  the  pro- 
cess void. 

The  Lord  Justice-Clerk. — Then  the  worse  executed 
the  better  for  you. 

Deas. — No  doubt.     The  question  is  one  of  process ; 


300  CASES  BEFORE  THE  HIGH  COURT 

No.  SO.    and  I  contend  that  there  is  no  process  here  at  which  the 

Cameron.  Court  Can  look ;  and  as  I  propose  to  serve  new  letters 

High  Court,  within  forty  days  after  the  expiry  of  the  letters  of  inti- 

Ts'&o. '   mation,  I  am  entitled  to  do  so,  as  there  was  no  good 

Murder,  citation  before. 

The  Lord  Justice-Clerk. — The  act  1701  was  passed 
to  prevent  a  long  period  oC  imprisonment  before  trial, 
and  our  duty  is  not  to  consider  whether  or  not  it  is 
stringent  in  its  terms,  but  to  construe  it  fairly  between 
the  Crown  and  the  subject.  The  point  contended  for 
on  behalf  of  the  Crown  is,  whether  there  shall  not  be 
twice  forty  days  within  which  the  pannel  may  be  incar- 
cerated on  criminal  letters.  In  this  case  the  sixty  days 
after  intimation  expired,  and  then  criminal  letters  were 
used  against  the  pannel,  which,  by  the  terms  of  the  act, 
expressly  require  the  prosecutor  to  prosecute  the  same 
to  a  final  sentence  within  forty  days,  unless  the  delay  be 
on  the  application,  or  at  the  desire  of  the  prisoner.  To 
adopt  the  construction  contended  for  by  the  Crown  would 
be  to  neutralise  all  the  provisions  of  the  statute  ;  for  if 
that  argument  was  correct,  it  would  come  to  this,  that 
having  served  a  bad  libel,  they  might  on  the  thirty-ninth 
day  serve  a  fresh  one,  and,  by  repeating  the  process, 
postpone  indefinitely  the  trial  of  the  party.  This  would 
defeat  the  purpose  of  the  act,  which  was  to  prevent  de- 
lay, and  fix  the  period  within  which  the  trial  must  be  pro- 
secuted to  a  final  sentence,  which  is  declared  to  be  forty 
days  after  the  prisoner  has  been  incarcerated  on  the  cri- 
minal letters.  The  act  did  not  give  any  presumption  of 
innocence,  but  merely  exempted  from  trial. 

The  other  Judges  concurred,  Lord  Cockburn  remark- 
ing, that  unless  that  point  was  fixed,  there  was  nothing 
fixed  in  the  law. 

The  application  was  refused; 

In  respect  of  which,  the  said  John  Cameron  was  de- 
clared for  ever  free  from  the  charge  made  against  him, 
and  dismissed  from  the  bar. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  301 


Present, 

The  Lord  Justice-Glerk,  i'eb.  6. 

1850. 
Lords  Moncbeiff,  Cockbcrn,  Wood,  and  Ivory. 

Her  Majesty's  Advocate — Young  A.D. 

AGAINST 

Catherine  Crossgrove  or  Bradley — Aytoun. 

Indictment — Relevancy — Theft. — Held  that  it  was  not  theft  in  a 
pawnbroker  tojappropriate  the  articles  which  had  been  pledged 
with  her. 

Catherine  Crossgrove  or  Bradley  was  charged  with    No.  51. 

™,     «   ^  Catherine 

XUfit  I  Crossgrove 

or  Bradley. 

In  so  far  as,  you  the  said  Catherine  Crossgrove  or  Bradley  having,  Hish  Court, 
during  the  period  between  the  1st  day  of  January  1849  and  the  22d      laso." 


day  of  October  1849,  or  part  thereof,  carried  on  business  in  or  near  " 
Hamilton  as  a  pawnbroker ;  and  various  persons  residing  in  or  near 
Hamilton  having,  at  various  times  during  the  said  period,  deposited, 
or  caused  to  be  deposited,  with  you  there,  sundry  articles,  their  pro- 
perty, in  pledge  or  pawn,  for  advances  of  money  made  by  you  thereon, 
and  in  particular  (1.),  John  M'CuUoch,  weaver,  now  or  lately  residing 
in  or  near  Grammar  School  Square  of  Hamilton,  and  Isabella  Hamil  - 
ton  or  M'Culloch,  his  wife,  or  one  or  other  of  them,  having,  within  or 
near  the  house  in  or  near  Hamilton,  then  and  now  or  lately  occupied 
by  you  the  said  Catherine  Crossgrove  or  Bradley,  on  one  or  more  oc- 
casions during  the  period  above  libelled,  deposited,  or  caused  to  be  de- 
posited, with  you,  in  pledge  or  pawn,  the  articles  specified  in  Inven- 
tory No.  I.,  hereto  annexed,  the  property,  or  in  the  lawful  possession, 
of  them,  or  one  or  other  of  them  :  And  (2.),  William  Doolan,  a  pen- 
sioner, now  or  lately  residing  in  or  near  Grammar  School  Square 
aforesaid,  and  Jean  Hamilton  or  Doolan,  his  wife,  or  one  or  other  of 
them,  having,  place  above  libelled,  on  one  or  more  occasions  during 
the  period  above  libelled,  deposited,  or  caused  to  be  deposited,  with 
you,  in  pledge  or  pawn,  the  articles  specified  in  Inventory  No.  II., 
hereto  annexed,  the  property,  or  in  the  lawful  possession,  of  them,  or 
one  or  other  of  them  :  And  (3.),  John  M'Guire,  now  or  lately  residing 
in  or  near  Grammar  School  Square  aforesaid,  and  Margaret  Neilson 
or  M'Guire,  his  wife,  or  one  or  other  of  them,  having,  place  above 
libelled,  on  one  or  more  occasions  during  the  period  above  libelled,  de- 
posited, or  caused  to  be  deposited,  with  you,  in  pledge  or  pawn,  the 
articles  specified  in  Inventory  No.  III.,  hereto  annexed,  the  propertjr, 


Theft. 


302  CASES  BEFORE  THE  HIGH  COURT 

No.  i!.  or  in  ihe  lawful  possession,  of  them,  or  one  or  other  of  them  :  And 
Catherine  ^^■^^  Alexander  Cunningham,  a  chimney-sweep,  then  and  now  or  lately 
or  Bradley  residing  at  or  near  Old  Cross,  in  or  near  Hamilton,  and  Jean  M'Guire 
HiehCom-t  ^^  Cunningham,  his  wife,  or  one  or  other  of  them,  having,  place  above 
Feb.  6.  libelled,  on  one  or  more  occasions  during  the  period  above  libelled, 
^^^'''  deposited,  or  cause  to  be  deposited,  with  you,  in  pledge  or  pawn,  the. 
Theft,  articles  specified  in  Inventory  No.  IV.,  hereto  annexed,  the  property, 
or  in  the  lawful  possession,  of  them,  or  one  or  other  of  them :  And 
(5.),  Agnes  M'Donald  or  Morrison,  now  or  lately  residing  in  or  near 
Grammar  School  Square  aforesaid,  having,  place  above  libelled,  on  one 
or  more  occasions  during  the  period  above  libelled,  deposited,  or  caused 
to  be  deposited,  with  you,  in  pledge  or  pawn,  the  articles  specified  in 
Inventory  No.  V.,  hereto  annexed,  her  property,  or  in  her  lawful  pos- 
session :  And  (6.),  Agnes  Mountain  or  Hendry,  a  widow,  now  or 
lately  residing  in  or  near  Grammar  School  Square  aforesaid,  having, 
place  above  libelled,  on  one  or  more  occasions  during  the  period  above 
libelled,  deposited,  or  caused  to  be  deposited,  with  you,  in  pledge  or 
pawn,  the  articles  specified  iu  Inventory  No.  VI.,  hereto  annexed,  her 
property,  or  in  her  lawful  possession  :  And  (7.),  Hugh  Burns,  now  or 
lately  a  dancing-master,  and  now  or  lately  residing  with  Peter  M'Guir- 
lick,  in  or  near  Muir  Wynd  of  Hamilton,  and  Agnes  Trevier  or  Burns, 
wife  of  the  said  Hugh  Burns,  or  one  or  other  of  them,  having,  place 
above  libelled,  on  an  occasion  during  the  period  above  libelled,  depo- 
sited, or  caused  to  be  deposited,  with  you,  in  pledge  or  pawn,  the  ar- 
ticle specified  in  Inventory  No.  VII.,  hereto  annexed,  the  property, 
or  in  the  lawful  possession,  of  them,  or  one  or  other  of  them :  And 
(8.),  Janet  Henderson,  now  or  lately  residing  with  John  M'Kay,  a 
labourer,  in  or  near  Church  Street  of  Hamilton,  having,  place  above 
libelled,  on  one  or  more  occasions  during  the  period  above"  libelled, 
deposited,  or  caused  to  be  deposited,  with  you,  in  pledge  or  pawn,  the 
articles  specified  in  Inventory  No.  VIII,,  hereto  annexed,  her  property, 
or  in  her  lawful  possession  :  And  (9.),  Margaret  Burns  or  Burgoyne, 
wife  of  John  Burgoyne,  an  earthenware  hawker,  now  oi^lately  resid- 
ing in  or  near  New  Wynd  of  Hamilton,  and  Margaret  Burns  or  Bur- 
goyne, his  wife,  or  one  or  other  of  them,  having,  place  above  libelled, 
on  one  or  more  occasions  during  the  period  above  libelled,  deposited, 
or  caused  to  be  deposited,  with  you,  in  pledge  or  pawn,  the  articles 
specified  in  Inventory  No.  IX.,  hereto  annexed,  the  'property,  or  in 
the  lawful  possession  of  them,  or  one  or  other  of  them :  And  (10.), 
Arthur  Jack,  a  labourer,  now  or  lately  residing  in  or  near  Castle 
Wynd  of  Hamilton,  and  Jean  Jackson  or  Jack,  his  wife,  or  one  or 
other  of  them,  having,  place  above  libelled,  on  one  or  more  occasions 
during  the  period  above  libelled,  deposited,  or  caused  to  be  deposited, 
with  you,  in  pledge  or  pawn,  the  articles  specified  in  Inventory  No.  X., 
hereto  annexed,  the  property,  or  in  the  lawful  possession,  of  them,  or 
one  or  other  of  them,  you  the  said  Catherine  Crossgrove  or  Bradley 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  303 

did,  on  the  20th,  21st,  or  22d  day  of  October  1849,  or  on  one  or  other     No.  SI. 
of  the  days  of  that  month,  or  of  September  immediately  preceding,  or   Catherine 
of  November  immediately  following,  the  time  not  being  more  particu-  or  Bradley, 
larly  known  to  the  prosecutor,  within  or  near  the  house  in  or  near  „.  ,  ^     j 
Hamilton,  then  occupied  by  you,  or  at  some  other  place  or  places  in     Feb.  6. 

or  near  Hamilton,  or  elsewhere  in  the  county  of  Lanark  to  the  prose- 

cutor  unknown,  wickedly  and  feloniously,  steal  and  theftuously  away  Theft, 
take,  the  various  articles  above  libelled,  specified  in  the  ten  inventories 
hereto  annexed:  Likeas  (11.),  on  the  18th  day  of  October  184.9,  or 
on  one  or  other  of  the  days  of  that  month,  or  of  September  immediately 
preceding,  or  of  November  immediately  following,  within  or  near  the 
shop  in  or  near  Church  Street  of  Hamilton,  then  and  now  or  lately 
occupied  by  James  Hamilton,  then  and  now  or  lately  baker  and  grocer 
there,  you  the  said  Catherine  Crossgrove  or  Bradley  did,  wickedly  and 
feloniously,  steal  and  theftuously  away  take,  a  bank  or  banker's  note 
for  one  pound  sterling,  or  twenty  shillings  sterling,  or  thereby,  in  sil- 
ver, the  property,  or  in  the  lawful  possession,  of  the  said  James  Hamil- 
ton :  Likeas  (12.),  time  last  above  libelled,  in  or  near  the  shop  or 
premises  at  or  near  the  Port  Well  of  Hamilton,  then  and  now  or  lately 
occupied  by  Johu  Prentice,  then  and  now  or  lately  publican  there,  you 
the  said  Catherine  Crossgrove  or  Bradley  did,  wickedly  and  felonious- 
ly, steal  and  theftuously  away  take,  fifteen  shillings  sterling,  or  there- 
by, in  silver,  the  property,  or  in  the  lawful  possession,  of  the  said  John 
Prentice,  or  Mary  Hare  or  Prentice,  his  wife :  Likeas  (13),  on  the 
20th  day  of  October  1849,  or  on  one  or  other  of  the  days  of  that 
month,  or  of  September  immediately  preceding,  or  of  November  im- 
mediately following,  within  or  near  the  house  in  or  near  Church 
Street,  in  or  near  Hamilton,  then  and  now  or  lately  occupied  by  John 
Macpherson,  bookbinder,  then  and  now  or  lately  residing  there,  you 
the  said  Catherine  Crossgrove  or  Bradley  did,  wickedly  and  feloniously, 
steal  and  theftuously  away  take,  a  cloak,  the  property,  or  in  the  law- 
ful possession,  of  the  said  John  Macpherson,  or  of  Elizabeth  Rose  or 
Macpherson,  his  wife:  Likeas  (14.),  time  last  above  libelled,  in  or 
near  the  shop  or  premises  in  or  near  New  Wynd  of  Hamilton,  then 
and  now  or  lately  occupied  by  William  Dougherty,  then  and  now  or 
lately  grocer  there,  you  the  said  Catherine  Grossgrove  or  Bradley  did, 
wickedly  and  feloniously,  steal  and  theftuously  away  take,  two  shil- 
lings and  sixpence  sterling,  or  thereby,  in  silver  money,  the  property, 
or  in  the  lawful  possession,  of  the  said  William  Dougherty. 

The  case  was  called  for  trial  at  the  Glasgow  Winter, 
Circuit. 

Aytoun,  for  the  pannel,  having  objected  to  the  rele- 
vancy of  the  indictment,  in  so  far  as  the  first  ten  charges 
alleged  that  the  crime  committed  by  the  pannel  was 


18S0. 


Theft. 


304  CASES  BEFORE  THE  HIGH  COURT 

Oath  r''    *^^*  '^^  theft,  Lord  Ivory  certified  the  case,  which  came 
crossgrove  ou  to  be  argued  of  this  date. 

^ "     Aytoun,  for  the  pannel,  objected  to  the  first  ten  arti- 

Feb.  6.  '  cles,  as  laid  in  the  indictment.  It  appeared  therefrom, 
_  that  the  property  alleged  to  have  been  stolen  had  been 
pledged  with  the  prisoner.  This  was  different  from  cases 
where  the  mere  custody  was  given  for  the  purpose  of 
work  being  done  thereon  for  the  party  by  whom  it  was 
delivered.  There  had  been  no  decision  holding  it  to  be 
theft  to  appropriate  an  article,  in  which  a  special  pro- 
perty had  been  given  by  the  owner.  The  authority  of 
Baron  Hume,  vol.  i.,  p.  59,  was  altogether  opposed  to 
the  present  indictment. 

Separately,  the  Pawnbroker  act,  39th  and  40th  Geo. 
III.,  cap.  19,  sec.  24,  contained  a  definition  of  the  offence, 
which  was  that  of  embezzlement,  and  that  should  have 
been  taken  as  the  appropriate  nomen  juris  by  the  prose- 
cutor in  the  present  instance. 

Young,  A.D. — There  was  no  doubt  as  to  the  meaning 
of  the  indictment.  The  pure  question  was,  whether  the 
facts  set  forth  justified  the  charge  or  not.  No  doubt  the 
authority  of  Baron  Hume  was  against  its  being  a  case  of 
theft,  but  the  answer  to  that  was,  that  Baron  Hume  had 
been  over-ruled  in  modern  cases,  more  especially  in  refe- 
rence to  his  doctrine,  that  in  order  to  constitute  theft,  it 
was  necessary  that  the  first  taking  should  be  felonious. 
Case  of  Brown,  High  Court,  July  3,  1839.  Swinton, 
vol.  ii.,  p.  394.  In  that  case  the  question  as  to  whether 
there  was  any  difference  between  the  bare  custody  and 
right  of  possession  was  discussed ;  and,  as  he  understood 
the  case,  there  was  no  distinction  taken,  particularly  in  the 
opinion  of  Lord  Moncreiff,  as  there  reported,  who  used 
the  word  possession  throughout.  The  right  given  to  the 
pawnbroker  by  the  pledge  was  quite  as  qualified  and 
conditional  as  the  watchmaker,  who  had  equally  his  right 
to  retain  the  property  for  work  done. 
The  Lord  Justice-Clerk. — A  lien  is  not  a  pledge. 
Young,  A.D. — There  was  no  difference  as  to  this  ques- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  ,305 

tion,  which  must  depend  on  the  right  of  the  party  to  ^^°-^!- 
vindicate  the  advance  he  had  made,  or  his  demand  for  re-  Croaagrove 
pairs  done,  and  in  which  his  right  would  be  equally  large.  °I_I1 — ^' 

£,,  -  ,  .    ,         /.  .      .         ,      ,  1      High  Court. 

The  act  referred  to  gave  no  right  or  appropriation  to  the    peb.  6. 


pawnbroker,  but  only  a  right  of  sale.  The  question  was, 
could  a  pawnbroker  steal  goods  which  had  been  pledged 
with  him  ?  If  he  could,  then  undoubtedly  the  present 
indictment  must  be  sustained. 

LoED  MoNCEEiFF. — ^There  is  no  doubt  that  this  case 
must  turn  on  somewhat  nice  distinctions  ;  and  the  cases 
which  have  been  already  decided,  as  to  whether  any  par- 
ticular species  facti  amount  to  embezzlement  or  theft, 
are  sufficiently  puzzling ;  but  it  appears  to  me  that  this 
case  differs  from  that  of  the  watchmaker,  which  has  been 
cited  in  argument,  and  the  analogous  one  of  money 
being  entrusted  to  a  messenger,  to  be  carried  to  the 
bankj  and  appropriated  by  the  party  on  his  way.  In  the 
present  case,  the  party  who  pledged  the  property,  by 
that  act  not  merely  gave  a  right  of  possession,  but  a  title 
to  the  goods  themselves,  which,  by  lapse  of  time,  became 
absolute,  and  enabled  the  party  to  sell,  and  give  a  valid 
right  to  all  the  world.  In  this  respect  it  was  different 
from  any  of  the  former  cases  relied  on  by  the  Crown. 
Besides,  the  use  of  the  word  embezzlement  in  the  statute 
seemed  to  denote  that  the  Legislature  did  not  view  the 
case  as  one  of  theft ;  and  as  it  would  be  going  farther 
than  any  precedent,  he  was  inclined  to  hold  that  the 
facts  alleged  in  the  first  ten  articles  did  not  support  the 
charge  of  theft. 

Lord  Cockburn. — It  is  with  some  hesitation  that  I 
concur  in  the  opinion  just  delivered. 

Lord  Wood. — I  concur.  I  think  the  facts  set  forth 
only  justify  a  charge  of  breach  of  trust.  If  the  argu- 
ment for  the  Crown  were  sound,  there  could  be  no  such 
offence  as  breach  of  trust,  inasmuch  as  to  constitute  that 
crime  there  must  have  been  an  original  lawful  possession 
given  to  the  guilty  party  by  the  true  owner. 

Lord  Ivory. — I  concur  on  the  grounds  stated  by 


18S0. 
Theft. 


1850. 


Theft. 


306  CASES  BEFORE  THE  HIGH  COURT 

No.  HI.  Lords  Moncreiff  and  Wood.  There  is  a  great  distinction 
crosBgrove  between  a  lawful  possession  de  facto,  and  a  legal  posses- 
or  Bradley,  ^j^^  profrio  juTC.  Here  the  latter  was  the  right  which 
'leb.T."^  ■  the  prisoner  is  alleged  to  have  had,  and  it  seems  to  me 
.  impossible  to  draw  any  distinction  between  the  appro- 
priation of  the  goods  pledged,  before  the  period  when 
the  sale  might  lawfully'  take  place,  or  the  proper  title  of 
the  pawnbroker,  and  his  unlawful  retention  of  any  sur- 
plus pence  which  might  be  realised  thereby,  over  and 
above  the  amount  advanced,  together  with  interest 
thereon,  at  proper  rates ;  yet  no  one  would  undertake  to 
say  that  the  latter  case  would  be  one  of  theft. 

The  Lord  Justice-Clebk. — I  concui*  in  the  opinions 
which  have  been  delivered.  Looking  to  the  legal  im- 
port of  the  indictment,  and  the  nature  of  the  contract  of 
pledge,  I  think  embezzlement  or  breach  of  trust  is  the 
appropriate  nomen  juris  in  the  circumstances.  It  is  quite 
different  from  those  former  cases,  where  only  a  limited 
and  temporary  custody,  unaccompanied  with  any  title  of 
property  in  the  things  themselves,  had  been  given,  for 
the  purpose  of  having  something  done  by  the  party  who 
committed  the  offence.  In  this  case  a  contract  is  set 
forth.  It  is  for  breach  of  that  contract  that  the  prisoner 
is  charged ;  and  I  am  of  opinion  that  the  criminal  viola- 
tion of  a  contract  of  trust  constitutes  the  offence  known 
by  us  as  breach  of  trust  or  embezzlement,  and  not  that 
of  th^ft. 

The  objection  to  the  relevancy  of  the  first  ten  articles 
was  thereupon  sustained. 

On  the  motion  of  the  Advocate-Depute,  the  Court 
deserted  the  diet  against  the  prisoner  pro  loco  et  tempore. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  307 

John  Lock  and  Patrick  Do6len,  Suspenders — Logan. 

AGAINST 

John  Muik  Steele,  Respondent — Crcmfurd. 

Suspension — Sentence. — Held  that  it  was  necessary  that  every  sen- 
tence should  be  signed  by  two  Justices  ;  and  a  Note  of  Suspension 
passed,  in  respect  the  sentence  under  review  had  been  signed  by  one 
only,  although  two  were  present  when  it  was  pronounced. 


This  was  a  suspension  of  a  sentence  pronounced  in  the  j_  Lock\ 
Burgh  Court  of  Airdrie,  whereby  the  complainer  was  ^^  g°°gj° 
sentenced  to  be  imprisoned  for  a  period  of  forty  days,  on  High  court. 
a  charge  of  having  assaulted  the  police  whilst  in  the    ^«^-^6- 
execution  of  their  duty.  ^  suspension. 

The  sentence  was  in  the  following  terms  : — 

'  Having  considered  the  charge,  with  the  evidence  adduced,  and 
'  heard  the  parties  viva  voce,  find  the  charge  proven,  and  that  the  said 
'  John  Lock  and  Patrick  Doolen  are  guilty  as  libelled ;  and  in  respect 
'  thereof,'  decern  and  adjudge  the  said  John  Look  to  be  imprisoned  in 
'  the  prison  of  Airdrie,  or  any  other  legal  prison  within  the  county  of 
'  Lanark,  for  the  period  of  forty  days  from  this  date ;  and  the  said 
'  Patrick  Doolen  to  be  imprisoned  in  the  prison  of  Airdrie,  or  other 
'  legal  prison  foresaid,  for  the  period  of  thirty  days  from  this  date.' 

(Signed)        '  Arch.  Gerard,  J.  P. 
'  Robert  Watt,  C.  D.' 

The  process  was  instituted  under  the  3d  and  4th 
Will.  IV.,  ch.  108.^ 

1  By  section  49.  of  this  statute,  it  is  enacted,  '  That  in  all  prosecn- 
'  tions  against  offenders  for  crimes  committed  within  the  Upper  and 
'  Middle  Wards  of  the  said  county,  or  within  the  said  burghs  of  La- 
'  nark  and  Hamilton  respectively,  where  the  punishment  shall  not  ex- 
'  ceed  sixty  days  imprisonment  in  either  of  the  said  jails,  or  imprison- 
'  ment,  accompanied  with  hard  labour,  for  a  period  not  exceeding  sixty 
'  days,  or  the  fine  to  be  imposed  shall  not  exceed  £5  Sterling,  the  proce- 
'  dure  against  such  offender  may  be  of  a  summary  nature,  without  any 
'  written  pleadings ;  and  the  Sheriff  or  Justices  of  the  Peace  of  the 
'  said  county,  or  the  Magistrates  of  the  said  burghs,  within  their  re- 
spective jurisdictions,  shall  be  authorised  and  empowered  in  all  such 


308  CASES  BEFORE  THE  HIGH  COURT 

j^Locf  &      Pleaded  for  the  Suspender — The  statute  gave  power 

p.  Dooien  both  to  the  Justices  of  the  Peace  and  the  Sheriff  to  try 

-^ — —  the  cause.     No  doubt  the  Sheriff  alone  might  sign  the 

Feb.°6"'^ "  conviction ;  but  if  the  proceedings  were  heard  before  the 

'^^"^     Justices  of  the  Peace,  it  required  the  two  Justices  to 

Suspension.  ^^^^^  according  to  the  rule  of  the  common  law,  whereas 

the  sentence  and  warrant  were  only  signed  by  one. 

Crawford,  for  Respondent. — It  appeared  by  the  re- 
cord that  two  Justices  were,  in  fact,  present  when  the 
cause  was  heard ;  and  it  must  be  taken,  from  the  terms 
in  which  the  conviction  was  framed,  that  both  concurred 
in  the  sentence. 

The  Court  unanimously  held,  that,  as  by  the  common 
law  of  Scotland  it  was  necessary,  not  only  that  two  Jus- 
tices should  be  present  at  the  hearing,  but  should  also 
sign  the  sentence,  in  case  of  conviction  ;  and  in  respect 
that  the  present  sentence  and  warrant  of  imprisonment 
bear  to  be  signed  by  one  Magistrate  only,  the  Court 
passed  the  note  of  suspension  with  expenses. 

John  Leishman,  W.S. — Wothekspoon  &  Mack,  W.S.,  Agents. 


prosecutions  to  hear  parties  and  witnesses  viva  voce,  and  to  award 
such  legal  punishment  as  the  crime  requires,  not  exceeding  that 
herein  prescribed,  or  to  remit  the  case  for  investigation  and  trial  in 
any  other  legal  form  before  a  competent  court ;  provided  always, 
that  in  all  such  summary  trials,  a  record  shall  be  kept  of  the  charge, 
and  of  the  judgment  pronounced  against  such  offenders,  by  the  Sheriff- 
clerk  or  his  deputes,  and  by  the  Clerk  of  the  Peace  or  his  deputes, 
for  the  county,  and  by  the  respective  Town-clerks  for  the  said  burghs, 
in  a  book  to  be  kept  in  the  form  set  forth  in  schedule  (B)  hereunto 
annexed ;  and  the  said  Clerk  of  the  Peace  or  hia  deputes,  and  the 
said  Town-clerks,  acting  as  legal  assessors  to  the  Justices  and  Ma- 
gistrates respectively  in  such  summary  convictions ;  and  an  extract 
or  duplicate  of  the  entry  in  the  said  book,  signed  by  the  judge,  and 
by  the  clerk  acting  for  the  time,  shall  be  the  authority  to  the  Magis- 
trates having  charge  of  the  said  respective  jails,  and  their  officers 
and  keepers  of  the  said  jails,  for  executing  the  sentence  of  each  com- 
mitment.' 


Jan.  6. 
J»oO. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  309 

Present, 

The  Lord  Justice-Clerk, 

Lords  Moncrbifp  and  Wood. 

Her  Majesty's  Advocate — Deaa  A.D. — J.  M.  Bell  A.D. 

AGAINST 

Alexander  Fraser  Crawford — Shand  and  Macconochie. 

Indictment — Relevancy — Threatening  Letters. — Held,  1st,  That 
it  was  not  necessary,  in  an  indictment  charging  the  sending  of 
threatening  letters,  to  negative  the  truth  of  the  charges  therein  con- 
tained. 2nd,  That  the  Veritas  of  the  charges  made  could  not  be 
proved,  either  in  justification  or  mitigation,  by  the  pannel. 

Alexander  Fraser  Crawford,  clerk  or  writer,  was   Aiex^l. 
indicted  and  accused,  That  albeit,  by  the  laws  of  this  Crawford 
and  of  every  other  well-governed  realm,  the  wickedly,  j^^''^™nd 
maliciously,  and  feloniously.  Writing  and  Sending,  or   Feb.  u. 
causing  to  be  written  and  sent,  any  Threatening  Letter,  -^ — '— 
particularly  for  the  purpose  of  extorting  money,  is  a  ing  Letters. 
crime  of  an  heinous  nature,  and  severely  punishable  : 

Yet  true  it  is  and  op  verity,  that  you  the  said  Alexander  Fra- 
ser Crawford  are  guilty  of  the  said  crime,  actor,  or  art  and  part :  In 
so  PAR  AS,  on  the  30th  day  of  August  1849,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  July  immediately  preceding,  or  of  September 
immediately  following,  within  or  near  the  house  situated  in  or  near 
Potterrow,  in  or  near  Edinburgh,  then  and  now  or  lately  occupied  by 
Angus  M'Kay,  a  type-founder,  then  and  now  or  lately  residing  there, 
or  at  some  other  time  and  place  in  or  near  Edinburgh  or  elsewhere  to 
the  prosecutor  unknown,  you  the  said  Alexander  Fraser  Crawford  did, 
wickedly  and  feloniously,  write,  or  cause  or  procure  to  be  written, 
maliciously,  a  threatening  letter,  conceived  in  the  following  or  similar 
terms : — 

'  Mackays  Lodgings 
'  39  Potter  Row  30th  Augt  ]  849 

'  Sir, 

'  After  the  many  years  I  have  been  in  your  employment, 
'  and  during  which  time  I  served  you  as  faithfully  as  if  you  had  been 


310 


CASES  BEFORE  THE  HIGH  COURT 


No.  S3. 
Alex.  F. 
Crawford. 

High  Court. 

Jan.  6. 

1850. 

Threaten- 
iug  Letters. 


my  own  father,  I  have  been  at  a  loss  to  account  for  your  very  ex- 
traordinary and  unfeeling  conduct  towards  me  since  I^eft  you  in 
January  last,  and  can  now  only  account  for  that  conduct  as  indi- 
cating a  wish  on  your  part  to  withhold  the  £1000  you  are  due  me 
in  terms  of  your  bargain  with  me  on  the  Sea  Shore  of  Ardrossan  in 
the  year  1835.  I  need  hardly  mention  that  that  bargain  (which  I 
have  again  and  again  asked  you  to  implement)  was,  that  I  should 
shew  that  the  funds  of  John  Crawford  situated  in  Scotland  were 
equal  to  the  payment  of  his  Scotch  debts.  This  you  know  I  con- 
vinced you  of  many  years  ago,  and  indeed  had  it  not  been  for  your 
own  grasp-all  disposition  the  whole  of  the  Scotch  debts  might  have 
been  paid  and  settled  during  the  year  1837,  leaving  a  large  reversion 
in  favour  of  your  father-in-laws  family.  For  this  acting  on  your 
part  however  I  am  not  to  blame  and  therefore  I  shall  not  submit  to 
the  reason  you  have  oft  assigned  for  withholding  from  me  the  pay- 
ment of  this  £1000.  Namely  that  I  was  not  only  to  make  it  clear 
that  the  Scotch  funds  would  pay  the  Scotch  debts,  but  was  to  remain 
perfectly  teetotal  during  the  time  of  my  being  occupied  in  bringing 
out  such  a  result.  You  know  well  that  no  such  condition  as  the 
second  was  ever  mooted  by  you,  and  I  have  therefore  now  to  state 
that  with  the  view  of  saving  further  discussion  between  you  and  me 
I  shall  restrict  my  claim  against  you  for  this  £1000  to  £200,  and 
an  assignation  to  the  £100  due  you  by  ray  father,  along  with  such  a 
character  as  my  unswerving  exertions  for  the  benefit  of  yourself  and 
your  father-in-law's  family  merits.  If  these  conditions  are  refused 
I  shall  then  furnish  a  Copy  of  this  Letter  with  the  following  infor- 
mation to  Messrs  Jollie,  Mr  Hill,  Mr  Ranken,  M'  Balfour,  Dr  Ar- 
thur, and  to  Messrs  Stephen  Rowan  Crawford  and  Jas  Crawford 
through  their  agent  here  Mr  Macrae,  which  will  put  your  actings  in 
various  ways  in  their  proper  light : — 

'  ist.  Debts  against  John  Crawford! s  Estate  purchased  hy  you. 

'  In  you  whole  correspondence  and  in  the  whole  proceedings  before 

the  Court  you  have  constantly  alfirmed  that  these  debts  were  not 

purchased  by  you  for  the  benefit  of  John  Crawford's  family,  or 

under  any  factory  granted  in  your  favor  by  your  mother  in  law 

Mrs  Crawford.     Both  of  these  statements  you  know  to  be  utterly 

untrue  as  they  were  bought  by  you  under  and  in  virtue  of  a  factory 

granted  to  you  by  M"  Crawford  in  the  year  1833.     This  factory 

tho'  unrecalled  you  have  taken  care  to  keep  out  of  view.    The  money 

'  you  drew  and  have  still  to  account  for  on  account  of  these  debts  will 

'  do  much  more  than  pay  the  £1000  &  interest  due  to  M"  Mollison's 

•  Trustees,  as  well  as  save  some  thousands  to  John  Crawford's  Estate 

'  being  the  interest  still  payable  upon  these  debts  for  which  you  have 

'  no  claim  against  his  funds. 

«  2n<i.'  Vitiations  made  hy  you  in  the  Bill  Booh,  Day  Books  and 
'  Ledger!  of  John  Crawford  S;  Co.  in  the  year  1835. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  311 

You  are  aware  that  after  proceedings  were  adopted  in  Court  by     No.  S3. 
Mr  George  Boyd  Hay,  by  M™  Bonn,  by  Stephen  Eowans  Ex'ors  ^^i^^_ 


and  others,  you  founded  on  the  alterations  so  made  as  if  they  had  ■ 
been  done  at  or  about  the  time  of  John  Crawford  &  Cob  Bankruptcy     jan.  g. 
in  1816.     These  you  know  I  can  easily  point  out.     This  conduct       I860, 
without  any  advice  from  me  the  Creditors  referred  to  will  know  how  Threaten- 
to  appreciate  after  these  facts  are  made  known  to  them.  '°S  Letters. 

'  3rd.  John  Crawfords  Ledger. 

'  You  also  know  that  the  Accounts  of  Mr  John  Cumraing  and  of 
Stephen  Rowan  in  this  Ledger  were  altered  by  you  with  the  view  of 
preventing  these  parties  from  getting  payment  of  two  promissory 
notes  due  to  them  by  John  Crawford,  the  one  for  £500,  the  other 
for  £2500.  In  this  attempt  you  have  hitherto  been  successful,  but 
will  be  so  no  longer  after  the  facts  now  stated  are  made  known  to 
the  parties  interested. 

'  4tli.  Interlocutor  of  7th  March  1835, 

'  You  are  aware  that  you  altered  this  Interlocutor  with  the  view  of 
making  it  appear  that  the  dividend  which  it  ordered  was  a  fixed  one 
of  14/  per  pound,  instead  of  a  general  payment  to  account  under  cer- 
tain conditions.  The  serious  nature  of  this  offence  yon  know  too 
well  to  require  my  dwelling  upon  it. 

'  5th.  _4j  to   the   £1000  guaranteed  hy  you   to  M'>'>   Mollison's 


'  You  are  aware  that  in  your  examination  in  reference  to  this  debt 
'  you  gave  your  oath  before  the  Commissioner  that  you  did  not  know 
'  where  the  original  agreement  between  these  Trustees  Mr  Wilson  and 

•  yourself  was,  altho'  I  had  previously  shewn  you  that  it  was  in  the 
'  hands  of  Mr  Patrick  W.S.  You  also  swore  that  you  had  produced 
'  to  the  Commissioner  every  Letter  connected  with  your  liability  for 
'  this  £1000,  knowing  well  that  many  of  the  most  important  Letters 
'  were  kept  back  by  you.  • 

'  6th.  Bond/or  £2000  by  M''  Charteris  in  favour  of  your  mother 
'  in  law  M"  Crawford. 

'  You  have  alleged  to  her  family  that  you  uplifted  this  sum  and 
'  interest  with  her  consent,  and  that  you  afterwards  accounted  there- 
'  for  to  her,  knowing  both  of  these  statements  to  be  untrue.  Neither 
'  Mrs  Crawford  nor  M'  Wilson  who  you  say  got  the  money  was 
'  aware  of  where  it  came  from  altho'  you  no  doubt  wrote  Mr  W.  that 
'  you  had  to  borrow  money  to  oblige  him,  but  from  whom  you  have 

•  never  yet  stated  in  so  far  as  know. 

'  7th.  Factory  granted  to  you  by  Mr>  Crawford  in  1 836. 

'  You  have  ever  since  Stephen  Crawford's  return  in  1838,  stated 
'  this  factory  to  be  the  first, — knowing  as  already  stated  that  this 
'  statement  was  untrue.  This  factory  of  1836  was  as  you  know  a 
'  mere  nominal  matter,  being  executed  to  prevent  John  Crawford'a 

X 


312  CASES  BEFORE  THE  HIGH  COURT 

No.  S3.  '  Creditors  from  appointing  a  factor  in  the  room  of  Mr  M'Lachlan 

Cra^wford.  '  ^^^^  ^^'^d  in  that  year. 

^.  ^^^^^  '  8th.  Mrs  Crawford's  Trust  Deed  of  1833. 

Jan.  6.  '  You  know  that  in  the  whole  proceedings  which  have  taken  place 

18S0.  i  JQ  Court  in  regard  to  this  Deed,  you  have  held  it  up  as  an  existing 

Threaten-  '  document,  notwithstanding  the  fact  that  you  gave  up  every  right  you 

ing  Letters. ,  ^ja^  ^j^^gj,  j^^  ^^  ^^jj  ^^  ^„  Wilson.     This  is  proved  by  your  Letter 

'  to  that  gentleman  in  1839.  In  these  proceedings  you  have  also 
'  stated  that  the  addition  made  to  this  Deed  after  your  wife's  death 
'  was  suggested  and  prepared  by  Mr  Patrick,  while  you  know  well 
'  that  this  is  an  utter  untruth.  They  were  suggested  and  prepared  by 
'  the  late  Mr  James  Donaldson,  as  his  Letter  to  you,  but  which  you 
'  have  hitherto  concealed,  will  prove. 

'  9*.  Chancery  Money. 

'  You  know  that  in  accounting  for  these  funds  you  have  brought 
«  against  them  upwards  of  £8000  for  my  labour  from  the  year  1835 
'  to  1843  for  which  you  have  no  legal  claim, — Altho'  you  promised 
'  to  me  that  I  was  to  receive  a  per  centage  on  the  amount  of  my  said 
'  labour,  which  like  your  other  promises  I  am  of  opinioa  you  had  no 
'  intention  of  keeping  when  you  made  it.  But  be  this  as  it  may,  I 
'  contend  you  cannot  bring  against  these  funds  more  than  you  actually 
'  paid  to  me  during  the  period  stated,  which  will  not  amount  to  more 
'  than  £800.  You  can  farther  have  no  claim  for  the  £4000  odd  you 
'  charge  as  commission  for  the  drawing  these  funds.  The  mode  in 
'  which  you  are  bound  to  make  your  charges  against  this  money  is 
'  established  by  your  account  which  Mr  "Wilson  docquetted  in  June 
'  1835. 

'  10.  Your  Manifold  Writer. 

'  You  have  again  and  again  all  but  affirmed  that  Mr  Stephen 
'  Rowan  Crawford  had  stolen  this  useful  apparatus  out  of  your  writing 
'  room  and  had  thereby  become  possessed  of,  and  kept  up  Letters 
'  which  you  had  written  to  your  mother  in  law,  giving  her  as  you 
'  alleged  States  or  Memoranda  of  how  you  had  expended  the  money 
'  you  drew  from  Chancery.  Now  the  truth  is  that  that  manifold 
'  writer  was  in  the  hands  of  your  own  family — and  that  every  Letter 
'  it  ever  contained  were  returned  to  you  in  the  packet  about  which 
'  you  made  such  a  noise  and  incurred  so  much  expense, — but  still  not 
'  one  of  these  Letters  gave  any  information  to  Mrs  Crawford  or  to  any 
'  one  else  as  to  how  you  had  expended  the  Chancery  money — Altho' 
•'  I  believe  a  part  of  it  crossed  the  Atlantic  and  another  part  of  it  pur- 
'  chased  a  House  in  James  Square,  but  as  to  which  I  shall,  in  the 
'  meantime,  say  no  more, — though  I  beg  of  you  not  to  suppose  that 
'  such  is  not  fully  in  my  power. 

'  Before  making  any  communication  to  third  parties  (except  to 
'  your  Agent  M'  James  Macknight)  on  the  subject  of  this  Letter  I 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  313 

'  shall  wait  till  .the  forenoon  post  of  Monday  first  for  your  reply.     If    No.  S3. 
'  I  do  not  hear  from  you  by  that  time  you  will  have  yourself  for  my  Q^^^g^^^ 
'  then  following  the  line  of  conduct  I  have  stated  in  a  previous  part  of  High  Court. 
'  this  Letter.  Jan.  6. 

'  I  am  Sir  ^850. 

'  Your  mo  obed'  servant  Threaten- 

'  Alex.  F.  Crawford.'  i"g  Letters. 

and  you  did,  time  and  place  aforesaid,  address,  or  cause  or  procure  to 
be  addressed,  the  said  letter,  at  the  end  thereof  thus  : — 
'  ToWmCrawfurdEsqr   ^ 

'  of  Cartsburn'  J 
which  letter  was  meant  and  intended  by  you  for  William  Crawfurd 
of  Cartsburn,  then  and  now  or  lately  residing  in  or  near  Bellevue 
Crescent,  in  or  near  Edinburgh  :  Farther,  time  above  libelled,  within 
or  near  the  house  situated  in  or  near  Bellevue  Crescent  aforesaid,  then 
and  now  or  lately  occupied  by  the  said  William  Crawfurd,  you  the 
said  Alexander  Fraser  Crawford  did,  wickedly,  maliciously  and  feloni- 
ously, leave  or  deliver,  or  cause  or  procure  to  be  left  or  delivered,  the 
foresaid  threatening  letter,  addressed  as  above,  with  some  person  or 
persons  to  the  prosecutor  unknown,  then  and  now  or  lately  in  the  ser- 
vice of,  or  residing  with,  the  said  William  Crawfurd,  for  the  purpose 
and  with  the  intention  of  the  said  letter  being  delivered  to  the  said 
William  Crawfurd ;  and  the  said  letter  was,  on  or  about  the  following 
day,  or  within  some  short  period  thereafter,  received  by  the  said  Wil- 
liam Crawfurd ;  and  all  this  you  the  said  Alexander  Fraser  Crawford 
did  for  the  purpose  of  extorting  money  from  the  said  William  Craw- 
furd :  LiKEAS  (2.)  on  the  10th  day  of  September  1849,  or  on  one  or 
other  of  the  days  of  that  month,  or  of  August  immediately  preceding, 
or  of  October  immediately  following,  within  or  near  the  foresaid  house 
situated  in  or  near  Potterrow  aforesaid,  then  and  now  or  lately  occu- 
pied by  the  said  Angus  Mackay,  or  at  some  other  time  and  place  in 
or  near  Edinburgh  or  elsewhere  to  the  prosecutor  unknown,  you  the 
said  Alexander  Fraser  Crawford  did,  wickedly,  maliciously,  and  felo- 
niously, write,  or  cause  or  procure  to  be  written,  a  threatening  letter, 
conceived  in  the  following  or  similar  terms  : — 

'  Mackays  Lodgings  39  Potter  Eow 
'  September  10th  1849 
'  Sir 

'  I  received  your  Letter  of  the  5'h  Instant  the  contents  of 
'  which  do  not  surprise  me  as  any  one  who  had  been  guilty  of  the  de- 
'  ceipt  and  duplicity  exposed  in  my  communications  to  you  can  very 
'  well  afifbrd  to  deny  and  apparently  reprobate  any  truth.  In  that 
'  Letter  you  state  that  my  communications  to  you  aud  to  your  Agent 
'  created  sarprise  and  indignation.  That  they  may  have  surprised 
'  your  Agent  I  can  well  believe,  but  that  they  surprised  you  I  have 


314  CASES  BEFORE  THE  HIGH  COURT 

No.  53.     '  no  hesitation  in  saying  that  this  could  only  have  arisen  from  your 
Crawford    '  I'^^'Dg  thought  I  would  never  reveal  under  any  circumstances  what 

'  I  state  in  my  Letter  to  you  ;  or  you  must  have  laboured  under  a  very 

HighCourt.  ,  ."'.•'„'•'„  „       .  ^ 

Jan.  6.        strange  misconception  of  the  extent  oi  my  recollection. 

18S0.  '  I  gijall  now  shew  you  that  if  what  I  state  is  calumnious,  it  is  not 

Threaten-  '  the  less  true,  and  that  it  is  in  my  power  to  prove  these  allegations. 

ing  Letters,  i  gyj.  before  doing  so  I  beg  to  premise  that  I  am  neither  actuated  by 

'  ingratitude,  nor  by  anything  dishonourable,  altho'  you  negative  my 

'  allegation  as  to  your  promise  of  £1000  to  me  God  and  your  con- 

'  science  best  knows  that  you  did  make  that  promise,  and  the  reason 

'  for  your  doing  so  was  very  plain,  viz.,  that  you  wished  to  have  the 

'  whole  Chancery  money  for  division  among  yourself  and  your  Father- 

'  in -law's  family.     Mr  Wilson  as  you  know  was  willing  to  give  up- 

'  wards  of  £8000  (Marryats  dividends)  to  insure  this  result. 

'  The  first  of  my  allegations  is  that  you  under  a  factory  of  1833 

'  purchased  up  the  debts  against  Your  Father-in-law's  Estate.     If 

'  you  refuse  to  produce  this  factory  I  have  a  copy  of  it  in  my  posses- 

'  sion.     I  presume  you  will  hold  this  as  sufficient  evidence  to  substan- 

'  tiate  the  truth  of  this  allegation. 

'  2nd  &  S^d.  The   Books  referred  to  and  the   Report  taken  by 

'  Mess"  Jollie  on  these  Books,  by  two  eminent  Accountants  will 

'  prove  these. 

'  4*.  As  to  the  Interlocutor  of  7"»  March  1 835,  will  be  proven  by 

'  that  paper  itself,  and  by  what  you  will  no  doubt  recollect  of  my 

'  having  mentioned  to  you  about  it  18  months  ago  that  Mr  Henry 

'  (Jollies  Clerk)  threatened  me  with  criminal  proceedings  as  to  this 

'  very  alteration. 

'  5tli  Is  regarding  the  £1000  you  guaranteed  to  MoUison's  Trustees. 

'  that  your  Oath  in  this  Case  was  inconsistent  with  truth  I  need  only 

'  refer  to  your  Deposition  in  which  it  will  be  seen  that  yon  distinctly 

'  swore  that  you  did  not  know  where  the  original  agreement  was, 

'  altho'  as  I  again  repeat,  I  pointed  out  to  you  in  the  copy  Inventory 

'  of  original  papers  handed  over  by  you  to  M'  Patrick  that  that  docu- 

'  ment  was  in  his  possession.  'That  you  kept  back  letters  of  the  utmost 

'  consequence  against  yourself  will  in  this  Case  be  proven  by  the 

'  letters  so  retained 

'  6*.  As  to  Charteris'  Bond.     The  Discharge  you  granted  for  this 

'  Bond  will  shew  I  have  no  doubt  that  yon  uplifted  the  money  under 

'  M"  Crawford's   factory  of   1833, — and  I  defy  you  to  shew  that 

'  Mrs  Crawford  was  aware  you  did  so,  or  that  you  ever  accounted  to 

'  her  for  a  penny  of  the  money.     Every  Shilling  you  gave  her  was 

'  under  the  Agreements  between  you  and  her.     This  is  proved  by  the 

'  Agreements  which  were  prepared  by  M""  Donaldson  in  the  year 

•  1 833,  and  Copies  of  which  were  sent  to  M'  Wilson  to  London  in 

'  that  year.    The  various  discussions  between  you  and  him  on  this 

'  Subject  were  too  long  for  my  here  detailing  them.     They  are  fully 


ANli  CIRCUIT  COURTS  OF  JUSTICIARY.  315 

'  detaikd  however  in  the  Correspondence  between  him  and  you  a  large     No.  S3. 
'  proportion  of  which  has  not  even  been  seen  as  yet  by  your  own  Crawford. 

'  Agents.     I  also  defy  you  to  produce  a  Discharge  by  M™  Crawford  '  .       

'  for  this  money,  or  the  scrape  of  a  pen  that  she  was  aware  you  had     jan.  6. 
'  uplifted  it  much  less  that  you  had  given  her  any  account  of  it.  ^'^^O- 

'  The  7'^  requires  lio  proof  further  than  what  I  have  already  stated  Threaten- 
'  and  the  Letters  which  were  written  to  you  by  M'  M'Naught  and  '°S  Letter. 
'  Mess"  Jollie. 

'  8*  Is  regarding  Mrs  Crawford's  Trust  Deed  of  1833.  I  have 
'  only  again  to  refer  to  your  Letter  to  Mr  Wilson  in  Deer  1839  and 
'  to  Mr  Wilson's  Letter  to  you  brought  to  this  Country  by  Mr  Stephen 
'  Rowan  Crawford  in  Nov'  1838. 

'  9*  Is  as  to  bow  you  accounted  for  the  Chancery  money.  My 
'  Proof  on  this  subject  is  the  Accounts  for  my  labour  made  by  you 
'  and  your  general  Account  against  these  funds,  a  copy  of  which  is  in 
'  the  possession  of  Mr  James  MacKnight.  I  am  now  preparing  and 
•  will  soon  have  ready  a  State  of  what  that  Account  should  be.  It 
'  will  shew  that  Mr  Stephen  Eowan  Crawford  was  not  far  wrong  in 
'  the  sum  he  held  you  to  be  due  to  his  father's  Estate. 

'  As  to  the  1  Otli  allegation,   I  beg  to  refer  you  to  my  own  family 

■  who  know  something  of  the  matter.     As  to  the  money  that  crossed 
'  the  Atlantic  I  allude  to  a  man  in  New  York  taking  the  name  of 

■  Alexr  Watson  though  his  proper  name  is  Alex'  Waugh.     This 
'  man  as  you  well  know  left  Edinburgh  charged  with  embezzling  a 

large  proportion  of  the  City  funds,  and  hence  the  cause  of  his  chang- 
ing his  name  even  when  he  reached  America.  You  have  the  merit 
of  not  only  communicating  with  this  man,  but  in  trusting  to  his  care 
a  part  of  the  Chancery  funds,  and  as  to  the  house  you  purchased  in 
James  Square,  it  was  for  the  benefit  of  the  sister  of  this  very  man, 
and  who  is  still  kept  by  you  in  East  Broughton  place,  and  in  whose 
company  you  know  you'  have  spent  nearly  every  night  for  many 
years  past.  I  can  add  much  to  this  when  I  choose,  but  have  no  wish 
to  do  so. 

'  I  have  now  shewn  you  whether  the  statements  I  have  made  against 
you  are  calumnious  or  not,  and  as  to  your  allegation  that  I  wish  to 
extort  money  from  you,  I,  to  use  your  own  expression,  utterly  de- 
spise such  an  insinuation.  I  have  only  asked  you  to  fulfil  in  part  a 
promise  solemnly  given  by  you  to  me,  and  which  I  never  thought 
you  would  deny,  otherwise  you  may  rest  assured  I  would  never  have 
spent  so  many  fruitless  years  in  your  employment.  Ingratitude  can- 
not therefore  rest  with  me.  You  pocketed  thousands  while  you  paid 
me  with  hundreds.  You  are  now  only  acting  however  in  the  way 
I  have  been  told  even  by  your  own  friends  and  relations  you  would 
if  I  had  not  black  and  white  upon  any  bargain  I  had  with  you.  In 
addition  to  the  statements  I  have  already  made  I  have  still  one  as 
grave  as  any  of  the  rest — namely — that  you  in  the  year  1838  got 


316  CASES  BEFORE  THE  HIGH  COURT 

No.  53.     '  me  to  obtain  for  you  a  Notarial  Copy  of  your  Marriage  Contract, 
Alex.  F.    i  Ti^iiici,  copy  in  place  of  being  made  from  an  original  was  made  from 

— : ^  '  one  given  to  me  by  yourself — The  Copy  you  so  obtained  as  I  believe 

Jan.'e.  " '  y^^  produced  in  the  Court  of  Chancery.     The  proof  of  this  is  your 

.1850.      '  own  son  M^  Thomas,  M'  Swanston  the  Messenger  in  Edinburgh,  and 

Threaten-  '  the  Witnesses  who  signed  the  Notarys  false  Certificate. 

ing  Letters,      t  j^g  J  ]jaye  now  given  you  the  proofs  of  my  allegations,  I  again  re- 

'  peat  that  I  have  no  wish  to  expose  these,  nor  will  I  do  so,  if  you  will 

'  do  me  anything  like  justice — if  not  you  leave  me  no  other  alterna- 

'  tive  but  to  seek  redress  as  I  best  may. 

'  You  charge  me  with  innumerable  irregularities,  broken  promises, 
'  and  oaths,  but  had  you  had  even  a  spark  of  honor  you  would  have 
'  ejtplained  what  you  meant  by  these  expressions.  They  merely 
'  amount  to  this  that  I  sometimes  got  the  worse  of  drink,  and  nothing 
'  more.  "When  I  made  these  promises  they  were  made  in  good  faith, 
'  and  would  have  beeu  kept  had  it  not  been  for  the  dreadful  life  my 
'  wife  and  family  made  me  live  at  home. 

'  If  I  do  not  hear  from  you  either  through  a  private  channel  or 
'  otherwise  by  Tuesday  first  (to  morrow)  I  shall  then  make  use  of  mj 
'  information  in  whatever  way  I  think  fit. 
'  I  am, 

'  Sir 

'  Your  obed'  Serv' 

'  Alex.  F.  Crawford.' 
And  you  did,  time  and  place  last  above  libelled,  address,  or  cause  or 
procure  to  be  addressed,  the  said  last-quoted  letter,  at  the  end  thereof, 
thus : — 

'  Wm  Crawfurd  Esq 

'  of  Cartsburn 
'  5  Bellevue  Crescent,' 
which  said  last-quoted  letter  was  meant  and  intended  by  you  for  the 
said  William  Crawfurd  :  Farthek,  time  last  above  libelled,  within  or 
near  the  said  house,  situated  in  or  near  Bellevue  Crescent  aforesaid, 
then  and  now  or  lately  occupied  by  the  said  William  Crawfurd,  you 
the  said  Alexander  Eraser  Crawford  did,  wickedly,  maliciously,  and 
feloniously,  leave  or  deliver,  or  cause  or  procure  to  be  left  or  delivered, 
the  foresaid  threatening  letter  last  above  libelled,  addressed  as  above, 
with  some  person  or  persons  to  the  prosecutor  unknown,  then  and  now 
or  lately  in  the  service  of,  or  then  residing  with,  the  said  William 
Crawfurd,  for  the  purpose  and  with  the  intention  of  the  said  letter  last 
above  libelled  being  delivered  to  the  said  William  Crawfurd ;  and  the 
said  letter  last  above  libelled  was,  on  or  about  the  said  last-mentioned 
date,  or  within  some  short  period  thereafter,  received  by  the  said 
William  Crawfurd ;  and  all  this  you  the  said  Alexander  Eraser  Craw- 
ford did  for  the  purpose  of  extorting  money  from  the  said  William 
Crawfurd. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  317 

The  counsel  for  the  pannel  objected  to  the  relevancy  No.  53. 
of  the  indictment.  The  major  must  be  taken  to  be  one  Crawford. 
substantive  charge,  and  read  altogether.  The  word  High  Court, 
particularly  not  being  inserted  for  the  purpose  of  charg-  iTs'o.' 
ing  an  aggravation  merely,  the  allegation  was,  that  the  Threaten- 
pannel  had  been  guilty  of  sending  threatening  letters  for  "^  ^"*™' 
the  purpose  of  extorting  money. 

This  was  admitted  on  behalf  of  the  Crown. 

It  was  then  objected,  that  the  minor  did  not  answer  to 
the  charge  there  made.  It  was  said  that  the  letters 
were  written  for  the  purpose  of  extortion,  and  the  in- 
dictment was  open  to  two  objections.  1st,  That  it  did 
not  negative  the  truth  of  the  charges  made  in  the  letters 
against  the  party  to  whom  they  were  sent ;  and,  2dly, 
It  did  not  deny  that  the  alleged  debt  claimed  therein 
was  due.  All  the  precedents  of  indictments  for  sending 
threatening  letters,  imputing  offences,  had  negatived  the 
truth  of  the  statements  contained  therein,  by  setting 
forth,  at  the  end  of  the  minor,  that  the  pannel  knew  the 
statements  in  the  letters  to  be  false  (case  of  Ledingham, 
Aberdeen,  April  14.  1842  ;  Broun,  vol.  i.  p.  254.)  Not 
having  negatived  the  truth  of  the  charges  contained  in 
the  letters,  the  pannel  was  entitled  to  assume  that  the 
allegations  he  had  made  therein,  as  to  the  conduct  of 
the  party  to  whom  they  were  sent,  were  true,  and  that 
he  would  be  able  to  substantiate  their  verity  on  the 
trial.     But, 

2dly,  It  was  alleged  that  these  charges  were  made  for 
the  purpose  of  extorting  money,  whilst  the  indictment 
did  not  negative  the  allegation  of  a  just  debt  contained 
therein.  Extortion  could  not  be  the  obtaining  of  money 
due,  by  whatsoever  means.  As  used  in  a  criminal  sense, 
it  must  signify  an  endeavour  to  obtain,  by  means  of 
threats,  money  to  which  the  party  had  no  right.  In  the 
statute  7th  and  8th  Geo.  IV.  cap.  29,  section  8,'  which 

1  By  the  7th  &  8th  Geo.  IV.  0.  29,  §  8,  it  is  enacted,  '  That  if  any 
'  person  shall  knowingly  send  or  deliver  any  letter  or  Trriting,  de- 


318  CASES  BEFORE  THE  HIGH  COURT 

Aiek'l'    formed  the  code  of  England  applicable  to  the  sending  of 

Crawford,  threatening  letters,  it  was  required  that  the  party  should 

" jan'^e"'^''  ^^^^  ^^^^  ®°  without  reasonable  or  probable  cause ;  and 

i"^o-     in  the  case  of  the  Queen  v.  Mein  (I  Cox,  Criminal  Cases, 

Jhreate^-  p.  22,  Tyndal,  C.  J.),  held,  that  on  the  construction  of 

the  statute,  the  Jury  must  be  satisfied,  before  they  could 

convict,  not  only  that  the  party  had  no  reasonable  or 

probable  ground  in  law  to  make  the  demand,  but  that 

she  believed  that  she  had  none  such  at  the  time  of 

writing  the   letter.      Such   was   the  construction  put 

thereon  by  the  text  writers  on  English  law,  Russell  on 

Crimes,  vol.  ii.  p.  709,  et  seq.     This  was  analagous  to 

what  was  required  in  Scotch  law,  in  cases  of  reset  of 

theft  and  otherwise,  where  guilty  knowledge  must  be 

averred. 

Deas. — The  last  objection  was  sufficiently  answered 
by  all  the  precedents  which  were  in  the  form  which  had 
been  adopted  in  the  present  case,  concluding  that  all 
was  done  for  the  purpose  of  extorting  money.  That  was 
reasonable ;  for  even  should  it  be  proved  that  there  was 
a  just  debt  owing  to  the  party  who  sent  the  letters,  the 
law  would  not  allow  such  a  mode  of  enforcing  payment, 
as  threatening  to  accuse  the  debtor  of  heinous  or  in- 
famous offences,  in  case  payment  was  not  made  by  the 
time   he  appointed.     It   was   the  preferring  of  such 

'  manding  of  any  person,  with  menaces,  and  without  any  reasonable 
'  or  probable  cause,  any  chattel,  money,  or  valuable  security;  or  if 
'  any  person  shall  accuse  or  threaten  to  accuse,  or  shall  knowingly 
'  send  and  deliver  any  letter  or  writing  accusing  or  threatening  to 
'  accuse,  any  person  of  any  crime  punishable  by  law  with  death,  trans- 
'  portation,  or  pillory,  or  of  any  assault  with  intent  to  commit  any 
'  rape,  or  of  any  attempt  or  endeavour  to  commit  any  rape,  or  of  any 
'  infamous  crime,  as  hereinafter  defined,  with  a  view  or  intent  to  ex- 
'  tort  or  gain  from  such  person  any  chattel,  money,  or  valuable  security; 
'  every  such  offender  shall  be  guilty  of  felony,  and,  being  convicted 
'  thereof,  shall  be  liable,  at  the  discretion  of  the  court,  to  be  trans- 
'  ported  beyond  the  seas  for  life,  or  for  any  term  not  less  than  seven 
'  years,  or  to  be  imprisoned  for  any  term  not  exceed  four  years,  and, 
'  if  a  male,  to  be  once,  twice,  or  thrice  publicly  or  privately  whipped, 
'  (if  the  court  shall  so  think  fit),  in  addition  to  such  imprisonment. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  319 

charges  that  was  the  substantive  matter  of  offence,  and    No.  53. 

.  «  Alex  F 

that  was  totally  irrespective  of  the  right  to  demand  pay-  Crawford. 
ment  in  a  legal  way.     The  matters  of  which  the  party  High  Court, 
was  accused  in  the  present  case  were  of  the  most  heinous    ''isso' 
description,  not  only  sufficient  to  destroy  character,  but  Threaten- 
which  would,  if  proved,  subject  him  to  heavy  criminal  '"s  betters. 
penalties. 

The  other  objection,  that  the  indictment  did  not  nega- 
tive the  truth  of  the  charges  made,  was  important,  and 
the  present  indictment  had  been  drawn  after  grave  con- 
sideration. There  was  no  direct  authority  as  to  whether 
there  was  any  necessity  for  so  negativing  the  truth  of 
the  charges,  though  he  would  admit  that  the  prece- 
dents did  negative  the  truth. 

The  Lord  Justice-Clerk. — Are  we  to  assume  that 
the  charges  are  false,  without  your  having  stated  them 
so  to  be  ?  Take  the  charge  of  having  altered  an  interlo- 
cutor. The  pannel  may  prove  that  such  alteration  took 
place. 

Deas. — It  is  not  the  same  thing  to  say  that  T  must 
set  forth  that  the  charges  were  false,  and  that  I  must 
prove  them  to  have  been  so. 

The  Lord  Justice-Clerk. — If  it  would  be  a  good 
defence  to  prove  the  Veritas,  surely  you  must  negative 
it  in  the  charge. 

Deas. — The  judgment  to  be  pronounced  will  enter 
very  deeply  into  the  question,  as  to  whether  the  pannel 
could  lead  evidence  to  support  the  truth  of  his  accusa- 
tion. 

The  Lord  Justice-Clerk. — It  is  very  proper  that  you 
make  that  suggestion.  I  think  that  in  giving  you  an 
interlocutor  of  relevancy  we  should  absolutely  decide 
the  point,  that  the  party  could  not  lead  evidence  as  to 
the  truth  of  the  charges  he  made.  In  the  case  of  Pater- 
son,  High  Court,  November  8.  1843 ;  Broun,  vol.  i. 
p.  629,  after  an  interlocutor  of  relevancy,  to  which  the 
party  made  no  objection,  he  wished,  in  his  address  to  the 
Jury,  to  have  demonstrated  the  untruth  of  several  passages 


\ 


320  CASES  BEFORE  THE  HIGH  COURT 

No.  53.    of  the  Bible,  but  the  Court  refused  to  allow  him  to  do 

Alex.  1.  .    ^  J  J   • 

Crawford.  SO  after  that  interlocutor  had  been  pronounced ;  and  it 

High  Court,  is  the  great  advantage  of  the  interlocutor  of  relevancy 
1850.'    in  the  law  of  Scotland,  that  what  is  alleged  in  the 

Threaten-  major  is  thereby  fixed  to  constitute  an  offence  which 

mg  Letters.  gg^jjjjQ^  thereafter  be  redargued. 

Deas. — It  was  not  necessary  to  prove  falsehood,  and 
therefore  it  was  not  necessary  to  set  it  forth.  And,  2dly, 
the  truth  or  falsehood  of  the  accusations  made  had  no- 
thing to  do  with  the  offence.  The  pannel  had  not  said 
in  his  letter  that  he  would  inform  the  public  authorities. 
All  the  parties  named  were  private  individuals.  This 
was  an  attempt  to  compound  justice,  which  was  criminal 
in  itself.  If  the  pannel  could  enter  into  a  proof  of  the 
Veritas  of  his  charges,  every  man  would  be  liable  to  be 
put  upon  his  trial  for  the  most  heinous  offences,  if  any 
such  should  be  imputed  to  him  by  parties  who  had 
threatened  him  with  exposure.  That  would  be  contrary 
to  the  spirit  of  the  law.  It  would  also  be  inextricable 
in  practice,  as  a  counter-proof  would  then  be  necessary, 
and  the  effect  would  be,  to  place  every  person  to  whom 
a  threatening  letter  was  sent,  in  such  a  position  that  he 
would  have  no  alternative  but  pay  money  rather  than 
pass  through  so  painfiil  an  ordeal.  In  so  far  as  the 
English  decisions  on  the  statute  referred  to  threw  any 
light  on  the  subject,  they  were  in  favour  of  the  construc- 
tion contended  for  on  behalf  of  the  Crown.  In  the  case 
of  the  Queen  v.  Hamilton,  1  Carrington  and  Kirwan, 
p.  212,  Rolfe  B.,  held  it  to  be  immaterial  whether  the 
charge  contained  in  the  letter  was  true  or  not.  This 
was  an  interpretation  of  a  statute  wherein  to  constitute 
guilt,  want  of  reasonable  and  probable  cause  was  re- 
quired, and  must  be  considered  as  having  been  adopted 
as  being  most  in  accordance  with  the  common  law, 
which  interpreted  the  want  of  reasonable  and  probable 
cause  to  thfe  obtaining  of  the  money  only,  and  not  to  the 
preferring  of  the  charges  contained  in  the  letters. 
The  Court  having  considered  for  some  time. 


AND  CIRCUIT  COUETS  OF  JUSTICIARY.  321 

The  LoED  Justice-Clerk  said,  it  is  unnecessary  for   ^°^J^p_ 
us  to  deliver  opinions  in  this  case,  as  we  think  that  the  Crawford. 
indictment  might  be  much  improved  as  regards  one  of  ^'siiCouit. 
the  objections,  namely,  that  it  does  not  negative  that  the     iss'o. 
debt  claimed  in  the  letter  was  a  iust  demand.     We  Threaten- 

1.11.1        111  !••        loii  .        1      ing  Letters. 

think  this  should  be  more  distinctly  set  forth  than  m  the 
present  indictment,  either  by  a  distinct  negative  in  toto, 
or  by  stating  that  the  amount  demanded  was  greater 
than  any  sum  acknowledged  by  the  party  from  whom  it 
was  claimed,  or  that  it  was  not  constituted,  or  that  it 
was  compensated  by  counter  demands,  or  in  any  other 
similar  manner  shew  that  the  party  had  no  right  to 
instant  payment ;  but  we  don't  decide  that  such  an 
amendment  would  entirely  remove  the  objection.  As  to 
the  second  objection  we  give  no  opinion  whatever.  If 
the  Crown  wish  the  question  to  be  settled,  they  will  con- 
sider whether  they  should  frame  any  other  indictment 
in  a  corresponding  manner.  If  the  question  arises,  pro- 
bably the  whole  Court  will  consider  the  matter,  when 
that  judgment  will  be  pronounced  which  seems  most 
consistent  with  the  general  law  of  the  land. 

On  the  motion  of  the   Advocate-Depute,  the  Court 
deserted  the  diet  against  the  pannel  pro  loco  et  tempore. 


Thereafter,  of  this  date,  the  pannel  was  again  indicted   Feb-  h. 
on  a  libel  containing  the  following  addition  to  each 
charge : — 

'  You  well  knowing  that  the  money  of  which  you  demanded  pay- 
'  mqnt  from  the  said  William  Crawfurd  as  aforesaid  was  not  justly 
'  due  by  him  to  you,  or  was  not  admitted  by  the  said  William  Craw- 
'  furd  to  be  justly  due  by  him  to  you.' 

The  arguments  were  substantially  the  same  as  on  the 
former  occasion.  ' 

The  Lord  Justice-Clerk. — This  case  is  most  import- 
ant, in  respect  of  both  the  objections  which  have  been 
taken  to  the  indictment.     I  apprehend  that  those  objec- 


322  CASES  BEFORE  THE  HIGH  COURT 

No.  53.    tions  are  connected  more  than  has  been  assumed  in  the 

Alex.  F. 

Crawford,  coursc  of  the  argument ;  and  I  think  the  reasons  which 

HighCourt.  apply  t©  the  repelling  of  the  first  objection  have  equal 

18S0. '   application  to  the  second,  as  to  the  necessity  of  aver- 

Threaten-  ring  the  falschood  of  the  accusations  threatened  to  be 

ing  Letters.  , 

made. 

The  true  question  is,  what  is  really  the  essence  of  the 
crime  that  is  charged  in  the  major,  under  the  circum- 
stances ?  No  objection  is  taken  to  the  major  in  this  case. 
On  the  contrary,  it  is  admitted  to  be  good,  and  both  ob- 
jections resolve  themselves  into  this,  that  the  minor  does 
not  come  up  to  it.  To  my  mind,  the  argument  is  falla- 
cious. The  act  of  sending  a  threatening  letter,  for  the 
purpose  of  getting  money,  instead  of  resorting  to  due 
form  of  law  in  order  to  its  recovery,  is  the  crime.  Every 
man  has  a  right  to  make  his  answer  in  a  court  of  law  to 
all  demands  made  against  him,  whether  the  Court  thinks 
his  case  good  or  not ;  and  the  only  punishment  that  can 
be  awarded  against  him,  if  his  case  be  bad,  is  to  subject 
him  to  costs,  and,  in  special  classes  of  cases,  he  may  be 
liable  in  damages ;  but  before  the  case  is  tried  in  form 
of  law,  no  assumption  whatsoever  can  be  made  on  the 
justice  or  injustice  of  his  resisting  a  demand.  If  it  were 
necessary,  in  the  case  of  a  threatening  letter,  to  shew  the 
mala  fides  of  the  party  in  making  the  demand,  to  convert 
which  into  payment  is  the  object  of  the  letter,  it  would 
exoner  all  persons  in  sending  threatening  letters ;  for  it 
would  be  scarcely  possible  to  shew  that  such  party  did 
not  entertain  a  strong  belief  that  his  demand  was  just. 
The  more  wrongheaded  the  party,  the  more  would  he 
believe  that  he  was  an  injured  man,  and  that  his  demand 
was  just.  To  require  it  to  be  averred  that  he  had  no  be- 
lief in  the  justice  of  his  claim  would  therefore,  in  my 
opinion,  be  absurd.  The  crime  consists  in  using  the 
threat  to  concuss  a  person  into  paying  a  demand  which 
he  intends  to  resist ;  and  the  crime,  the  use  of  the  threat 
for  that  purpose,  is  the  same,  whether  the  party  using 
the  threat  thinks  his  demand  good  or  bad. 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  323 

The  second  objection  is,  that  the  indictment  does  not   ^^^^^^^ 
aver  that  the  accusations  contained  in  the  letter  were  Crawford. 


false,  and  known  to  be  false.     The  first  point  here  is,  ^^^^'J,*^"'''" 
whether  there  is  any  such  practice  in  the  style  of  indict-     isso. 
ments  as  to  create  a  presumption  in  favour  of  the  neces-  .Threaten- 

^  '  ing  Letters. 

sity  of  this  averment  in  the  indictment,  as  necessary  for 
the  relevancy  of  the  indictment.  In  the  case  of  Leding- 
hame,  the  circumstances  perhaps  might  be  thought  to 
justify  the  prosecutor  in  disproving  the  charges  contained 
in  the  letter ;  but  the  style  adopted  in  that  indictment, 
instead  of  being  an  ordinary  one,  is  quite  opposed  to  the 
common  form,  and  was,  I  believe,  now  causelessly  so.  In 
the  case  of  Murray,  tried  at  Perth  in  1820,  where  the 
party  was  transported  for  seven  years,  the  indictment  did 
not  negative  the  truth  of  the  charges  contained  in  the 
letter.  No  doubt  there  were  in  that  case  threats  of  per- 
sonal violence,  which  made  it  less  important  that  the 
truth  of  the  accusations  should  be  denied ;  but  in  the 
case  o{  Millar,  in  1831,  for  demanding  deeds  from  Lady 
Mar,  and  a  threat  of  exposing  certain  mal-practices  on 
her  part,  the  indictment  does  not  gainsay  the  truth  of 
the  allegation.  The  like  observations  apply  to  the  cases 
of  Douglas,  1837,  and  Nelson,  1839,  where  in  neither 
case  was  there  any  allegation  that  the  charges  made 
were  untrue.  The  case  of  Ledinghame  is  the  first  in 
which  I  have  been  able  to  find  any  allegation  that  the 
charges  contained  in  the  threatening  letter  were  untrue ; 
and  I  observe  that  in  subsequent  cases  that  the  style 
adopted  in  that  case  has  not  been  observed.  In  the  case 
of  Buchanan,  1842,  Boss,  1844,  Balfour,  1844,  Muir, 
1844,  Balfour,  1844,  Smith,  1845,  there  was  not  any 
negative  of  the  demand  claimed  being  due,  or  the  truth 
of  the  accusations  made. 

These  examples  are  sufficient  to  shew  that  there  is  no 
practice  so  commonly  observed  as  to  create  any  presump- 
tive case  in  favour  of  the  objection. 

The  question  therefore  arises,  is  there  any  principle 
which  requires  the  public  prosecutor  to  allege  and  prove 


324  CASES  BEFORE  THE  HIGH  COURT 

.  ?,"'•  ^^-    the  falsehood  of  the  demand,  and  also  of  the  accusations 

Alex.  F.  ' 

Crawford,  made  ? 


High  Court.      Jn  considering  this,  I  must  take  into  consideration  the 
1850.     question,  whether  in  defence'  or  mitigation  the  Veritas  of 

Threaten-  the  accusation  can  be  proved  in  behalf  of  the  pannel.  It 
'  would  be  impossible,  in  my  opinion,  to  separate  the  two 
points,  and  it  would  be  very  improvident  tb  decide  the 
one  without  looking  forward  to  tte  other  point,  although 
that  more  directly  will  arise  jn  the  course  of  the  trial. 
And  it  is  much  more  convenient  to  consider  the  point 
now. 

Now,  as  I  have  before  said,  the  criminal  offence  is 
sending  a  threatening  letter,  with  the  view  to  extort 
money. 

The  first  objection  is,  I  think,  utterly  untenable,  when 
the  nature  of  the  offence  is  considered.  Take  the  case 
of  a  threat  of  personal  violence.  Can  the  crime  of  using 
such  a  threat  depend  on  the  justice  of  the  debt  ?  Is  it 
to  be  contended,  that  if  a  man's  debt  can  be  shewn  to 
rest  on  probable  grounds,  he  is  innocent  of  "any  crime 
when  he  uses  a  threat  of  taking  life,  if  that  debt  is  not 
immediately  paid  ?  That  is  absurd.  Every  man  has  a 
right  to  dispute  the  demand  of  his  creditor  in  a  court  of 
justice,  and  it  is  no  answer  to  a  charge  of  threatening  to 
burn  his  house,  to  say  that  the  debt  which  the  party 
sought  by  that  threat  to  recover  was  really  due.  Now, 
there  can  be  no  difference  as  to  the  nature  and  essence  of 
the  crime  from  the  character  of  the  threat :  The  crime 
is  the  same,  whether  the  threat  is  of  personal  violence  or 
of  the  character  of  those  contained  in  the  present  case. 
The  crime  charged  against  the  pannel  is,  his  having  en- 
deavoured to  extort  money,  by  means  of  threats,  and  that 
crime  is  equally  committed,  whether  the  party  using  the 
threat  has  a  good  or  a  bad  debt,  and  whether  he  uses 
a  threat  of  personal  violence,  or  such  threats  as  here.  I 
think-it  could  not  be  left  to  the  jury  to  say  whether  he 
had  a  right  to  recover  something  from  the  party  whom 
he  threatened  to  expose,  any  more  than  when  he  threat- 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  325 

ened  personal  violence  ;  and,  in  either  case,  if  the  threat  ^,g^^p 
is  used,  I  think  it  could  not  be  left  to  the  jury,  as  any  Crawford. 
answer  to  the  charge,  to  say  whether  the  debt  was  just,  ^^^j{,^°""- 
or  rested  on  probable  grounds.  Reference  has  been  is^o- 
made  to  the  English  law,  and  to  the  necessity  of  proving  J'^^Ttte™ 
by  that  law  that  the  demand  was  without  probable  or 
reasonable  cause ;  but  that  law  is  altogether  statutory, 
and  it  is  not  for  us  to  construe  an  English  statute. 
Moreover,  under  that  law,  in  all  the  cases  in  which  a 
prosecution  has  taken  place,  the  party  threatenefd  has 
been  the  private  prosecutor ;  and  I  can  readily  conceive, 
that  the  conduct  of  the  private  party  may  have  been  con- 
sidered as  inseparable  from  the  nature  of  the  crime ;  for, 
were  any  objection  to  be  taken  to  the  counsel  for  the 
pannel  endeavouring  to  establish,  by  cross-examination, 
that  the  charges  preferred  in  the  letters  were  true,  the 
jury  would  at  once  assume  that  they  were  so,  and  might 
perhaps  act  accordingly.  The  case  assumes  a  totally  dif- 
ferent aspect  here,  where  we  have  a  public  prosecutor, 
who  has  to  look  to  the  public  interest  only,  and  affords 
another  illustration  of  the  immense  advantages  our  sys- 
tem affords  over  that  observed  in  the  other  end  of  the 
island  in  criminal  proceedings.  When  the  statute  is 
passed  on  such  matters  in  criminal  law,  it  is  often  very 
difficult  to  frame  it  so  as  to  be  adapted  to  the  offence  ; 
and  these  statutes  are  often  passed  with  too  little  consi- 
deration. If  the  statements  as  to  English  law  are  cor- 
rect, it  seems  to  follow,  that  if  a  man's  claim  rests  on 
probable  grounds,  he  may,  with  impunity,  use  any  threats 
well  calculated  to  intimidate ;  and  that  absurd  result 
seems  to  follow  from  the  ill  considered  terms  of  the  sta- 
tute. In  Scotland  the  offence  rests  on  common  law,  and 
therefore  the  principle  of  the  case  depends  oh  the  real 
essence  of  the  crime. 

The  like  observations  apply  to  the  second  objection, 
namely,  that  the  indictment  does  not  aver  that  the  charges 
were  false,  and  known  to  the  pannel  to  be  false.  Again, 
we  must  here  consider  what  is  truly  the  offence  the  party 


326  CASES  BEFORE  THE  HIGH  COUKT 

^]ll^^^    is  alleged  to  have  committed.     Plainly  that  "of  having 

Crawford,  uscd  threats  for  the  purpose  of  obtaining  money.     That, 

HighCourt.  and  that  alone,  is  the  essence  of  the  charge.     Now,  sup- 

1K50.     posing  the  threat  had  been  one  of  personal  violence, 

Threaten-  at  a  particular  time  and  place,  would  it  be  any  answer 

ing  Letters.  ^  *  ■' 

to  say,  that  the  threat  was  an  idle  boast,  and  that  the 
pannel  did  not  intend  to  do  any  harm?  Would  he 
be  permitted  to  shew  this,  viz.  that  he  had  arranged 
with  his  friends  that  they  should  be  present,  to  be  able 
to  prove  that  he  had  remained  within  doors,  and  never 
proceeded  to  execute  the  violence  he  had  threatened  ? 
Surely  not,  if  the  object  of  the  threat  was  to  extort 
money.  The  crime  would  be  complete  by  using  the 
threat.  Here,  indeed,  the  threat  is  different,  but  that 
surely  makes  no  difference.  It  is  equally  no  answer  to 
the  charge,  that  he  undertakes  to  prove  the  accusation, 
which  he  threatens  to  make  known  to  others.  For  him- 
self, he  has  no  interest  to  come  forward  as  private  prose- 
cutor. His  only  right  was  to  give  information  to  the 
public  authorities,  in  doing  which,  he  was  entitled  to  a 
large  protection,  on  principles  of  public  policy.  ^  Now, 
suppose  a  crime  to  be  committed  by  a  party  abroad,  in 
early  life,  when,  after  a  period  of  thirty  or  forty  years  of 
correct  conduct,  he  returns  home  with  a  well  earned  for- 
tune, and  that  some  one  happens  to  know  of  this  early 
delinquency,  and  threatens  to  expose  him  unless  payment 
is  made  of  a  sum  of  money :  Is  the  crime  of  sending  a 
threatening  letter  not  the  same,  whether  the  charge  be 
true  or  false  ?  Or  is  not  the  indictment  equally  relevant, 
whether  the  falsehood  of  the  charge  which  forms  the 
threat  be  alleged  or  not  ?  And  if  the  indictment  would  be 
relevant  without  alleging  the  falsehood,  I  cannot  see  how 
the  truth  of  the  charge  of  Veritas  would  be  relevant,  or  an 
answer  to  the  charge,  or  could  be  allowed  even  in  mitiga- 
tion. It  is  no  part  of  the  charge,  that  the  accusations 
in  the  letter  were  false.  The  charge  is,  that  the  pannel 
made  a  threat,  in  order  to  extort  money  ;  and  that  being 
so,  I  do  not  see  how,  in  logic  or  in  law,  the  Veritas  is 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  327 

relevant  as  an  answer  to  the  indictment,  or  in  allevia-   ^°-^^|, 

tion.  Crawford. 


The  observation  of  the  Lord  Advocate,  that  the  ob-  HighCom-t. 

Feb.  11. 

ject  of  the  threat  would  be  completely  secured  if  the     isso. 
pannel  were  allowed  to  enter  into  any  investigation  of  Threaten- 

,,..„.  ing  Letters. 

the  truth  of  his  charges,  either  in  justification  or  extenua- 
tion of  his  offence,  seems  to  me  most  important.  That 
would  make  the  criminal  law  not  a  protection  to  the 
threatened  party,  but  the  means  of  injury,  and  would 
thereby  secure  to  the  party  the  most  unlimited  and  pub- 
lic means  of  propagating  his  charge,  without  any  answer. 
For  observe,  if  it  is  not  necessary  to  allege  the  falsehood, 
the  public  prosecutor's  case  would  be  proved  by  establish- 
ing the  threat,  with  the  intent  with  which  it  was  made. 
He  has  no  replication  to  the  proof  in  defence.  If  the 
pannel  were  to  be  allowed  a  proof  of  the  kind  proposed, 
it  would  be  in  vain  to  talk  of  protection  to  the  accused 
party.  He  would  have  no  means  of  controlling  the 
course  of  the  trial ;  and  if  he  had,  it  would  not  be  allowed 
to  him  to  bring  affirmative  evidence  to  answer  the  pan- 
nel's  defence. 

I  also  attach  much  importance  to  the  necessary  incon- 
venience which  must  arise  if  such  a  proof  were  to  be 
held  competent.  I  do  not  say  that  inconvenience  is  ab- 
solutely conclusive  as  to  the  course  to  be  pursued,  as  in 
a  civil  case ;  but  it  is  extremely  important,  either  in  civil 
or  criminal  cases,  not  to  allow  collateral  issues ;  and  un- 
less we  had  some  precedent  to  guide  us,  or  some  impor- 
tant principle  of  justice  to  be  served  in  the  present  case, 
I  am  not  disposed  to  allow  an  issue  so  plainly  collateral  to 
be  raised  on  so  important  a  matter,  thinking,  as  I  do,  that 
every  principle  of  justice  is  opposed  to  the  course  proposed. 

In  so  far  as  a  proof  of  the  Veritas  is  proposed  to  be  led, 
by  way  of  extenuation,  I  think  it  equally  irrelevant,'  even 
assuming  the  charge  contained  in  the  threat  to  be  true. 
The  threat  held  out  is  the  issue  the  jury  have  to  try,  and  all 
that  the  Court  would  look  on  in  determining  the  punish- 

Y 


328  CASES  BEFORE  THE  HIGH  COURT 

No.  53.    ment.     I  wish  to  reserve  my  opinion  on  one  point  whiclr 
Crawford,  might  arisB  Rs  to  One  part  of  this  indictment.     I  am  not 
High  Court,  prepared  to  say  that  a  threat  of  making  public  that  a  party 
1850. '   is  living  in  an  immoral  and  incorrect  way,  is  sufficient  to 
Threaten-  render  the  pai'ty  making  such  threat  amenable  in  a  crimi- 
ing  e    rs.  ^^j  court,  though  that  be  done  to  extort  money.     On  this 
question  I  give  no  opinion,  as  it  may  be  contended,  with 
some  plausibility,  that  public  policy  ought  not  to  inter- 
fere to  prevent  such  exposure,  if  parties  choose,  by  their 
immoral  life,  to  expose  themselves  to  such  threats ;  and 
I  reserve  myself  until  that  point  shall  arise.     It  may 
arise  in  the  trial,  and  the  facts  may  affect  the  relevancy 
of  the  allegation,  either  as  a  defence  or  a  mitigation.     If 
a  married  man,  for  instance,  is  living  in  adultery  with  a 
woman,  whom  he  visits  in  a  house,  though  it  may  not  be 
known  to  his  family,  I  am  not  at  present  prepared  to  say, 
that,  if  a  person  gets  that  hold  over  him,  and  threatens 
to  expose  him,  if  he  does  not  buy  his  silence,  either 
such  a  threat  ought  to  be  subject  of  criminal  trial,  or 
the  truth  might  not  be  proved.     I  reserve  my  opinion 
on  both  points. 

Lord  Mackenzie. — I  concur  in  the  conclusion  at 
which  your  Lordship  has  arrived,  and  in  the  reasons  on 
which  you  have  founded  your  judgment.  I  think  the 
first  objection,  that  the  libel  does  not  negative  that  there 
was  a  debt  due,  is  not  well  founded,  and  that  it  is  equally 
a  crime,  whether  the  sum  demanded  was  a  debt  or  other- 
wise. 

No  man  is  entitled  to  take  the  law  into  his  own  hand. 
If  it  was  a  relevant  defence  to  prove  that  there  was  a 
good  demand  against  the  debtor,  it  would  then  be  equally 
available,  whatever  was  the  nature  of  tbe  threat  used  ; 
consequently  it  would  be  no  crime  if  the  threat  was  one 
that  the  debt  would  be  enforced  by  personal  violence,  or 
by  holding  a  pistol  to  the  head.  It  is  said  that  that 
would  be  robbery ;  but  what  is  robbery  ?  There  can  be 
no  doubt  that  that  crime  would  be  perfected  if  the  money 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  329 

were  obtained  by  means  of  threats  of  personal  violence.    f°^^y 
If  such  defence  were  admitted,  it  would  overturn  every  Crawford. 
principle  of  law.  ^Mb!^!"''' 

As  to  the  second  objection,  if  it  was  good,  it  would  i850. 
apply  equally  whether  the  application  for  payment  of  a  Threaten- 
debt  was  good  or  not,  and  this  I  cannot  hold.  If  a  party 
has  committed  an  offence,  his  creditor's  right  is  either  to 
inform  the  public  prosecutor,  or  to  make  an  application 
for  payment  of  his  demand,  without  any  threat  of  in- 
forming other  parties.  To  attempt  to  obtain  payment 
of  a  civil  debt  by  means  of  supjpressing  evidence  of  a 
criminal  offence  seems  to  me  unwarrantable  in  law. 

It  only  remains  to  be  considered,  whether  proof  of  the 
Veritas  is  admissible  either  in  exculpation  or  alleviation. 
I  do  not  think  that  it  is  ;  and  for  the  reasons  stated  by 
your  Lordship,  on  which  I  do  not  think  it  necessary  fur- 
ther to  enlarge. 

Lord  Moncreiff. — I  am  of  opinion  that  this  indict- 
ment is  relevant.  I  do  not  consider  that  it  is  necessary 
for  the  prosecutor  to  allege  either,  on  the  one  hand,  that 
the  debt  demanded  was  not  due,  or,  on  the  other,  that 
the  accusations  by  means  of  which  it  was  attempted  to 
be  enforced  were  untrue.  It  seems  to  me  that  the  of- 
fence is  complete  so  soon  as  the  party  attempts  to  en- 
force either  legal  or  illegal  demands  by  illegal  means. 

As  to  the  second  objection,  I  think  that  it  would  be 
far  worse  to  hold  that  a  criminal  charge  could  not  be 
sustained,  unless  the  indictment  negatived  the  truth  of 
the  accusations  contained  in  the  threats.  As  mentioned 
by  your  Lordship,  it  would  be  giving  the  accusing  party 
the  full  opportunity  of  stating  publicly  in  Court  what  he 
had  promised  otherwise  to  conceal,  in  case  his  demand 
were  acceded  to,  that  he  be  allowed  to  lead  evidence 
of  the  Veritas.  It  would  be  very  dangerous  if  such  were 
the  law.  In  the  main,  I  concur  in  what  your  Lordship 
has  so  well  explained. 

Lord  Cockbukn. — I  entirely  agree,  in  so  far  as  it  is 
necessary,  to  repel  the  objections  taken  to  the  relevancy 


330  CASES  BEFORE  THE  HIGH  COURT 

Aiek^F.  ^^  *^®  indictment.     As  to  the  other  point,  as  to  whether 

Crawford,  jt  jg  competent  to  the  pannel  to  lead  evidence  either  in 

H^sh^c°P^'- justification  or  allevatiou,  I  feel  some  difficulty  ;  but  ia 

18S0.     consequence  of  the  opinions  I  have  now  heard,  I  do  not 

Threaten-  wjsh  to  do  more  than  reserve  my  opinion,  until  the 

ing Letters.  ,  ,     „    ■,.     .        ■■ 

question  shall  distmctly  arise. 

Lord  Ivoey. — I  agree  with  Lord  Cockburn,  as  well 
in  repelling  the  objection  to  the  relevancy  of  this  indict- 
ment, as  also  in  reserving  my  opinion  on  the  competency 
of  any  special  questions,  by  way  of  defence,,  until  the 
same  shall  distinctly  arise. 

The  objection  to  the  relevancy  was  thereupon  repelled. 

Thereafter  the.  pannel  pleaded  guilty  to  the  sending 
of  the  first  letter,  as  libelled. 

In  respect  of  which  judicial  confession,  the  Court  ad- 
judged the  pannel  to  be  imprisoned  for  the  space  of  four 
months. 


Feb.  21. 
18S0. 


No.  S4, 
Bums  t. 


Present, 

Lord  Justice-Clerk, 

Lords  Moncbeiff,  Coceburn,  Wood,  and  Ivort- 

Daniel  Bukns,  Suspender — Dear — Millar. 

AGAINST 

Richard  John  Moxey,  Respondent — Neaves. 

Suspension — Vagrancy. — Circumstances  in  which  the  Court  sns- 
pended  a  conviction  in  the  Police  Court,  on  the  ground  that  the  ori- 
ginal complaint  charged  no  cognizable  offense. 


^°^^y-       This  was  a  Suspension  of  a  conviction  on  a  charge  of 

"i^ib^sr''  ■'vagrancy,  proceeding  on  a  complaint  which  narrated  that 

^^^^-     the  suspender  and  others  '  did  all  and  each,  or  one  or 

Suspension,    more  of  them,  in  contravention  of  the  Edinburgh  Police 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  331 

*  Act  1848,'  conduct  themselves  as  vaffrants,  by  being    No.  54. 

°  Burns «. 

'  found  on  the  14th  day  of  February  1850  years,  or  about    Moxey. 
•*  that  time,  in  the  house  situated  in  St  James'  Square,  High  Court. 

*  in  or  near  Edinburgh,  occupied  by  Jane  Marshall  or     mo. ' 

'  Russel,  and  by  Jane  Brash  or  Shiells,  or  by  one  or  other  suspension. 

*  of  them,  or  by  some  other  person  or  persons  to  the 
'  eomplainer  unknown*  idle,  and  having  no  fixed  places 

*  of  residence,  had  no  lawful  means  of  gaining  their  live- 
'  lihood.' 

On  the  same  date  the  Judge  found  the  complaint 
proved  against  the  accused,  and  sentenced  him  to  forty 
days  imprisonment. 

Pleaded  for  the  suspender^That  he  was  a  pawnbroker 
in  Glasgow,  and  had  only  arrived  in  Edinburgh  on  the 
day  in  which  he  was  apprehended,  having  come  on  occa- 
sion of  business. 


1  By  the  Ediuburgh  Police  Act,  11th  &  12th  Vict.  c.  113,  sect.  107, 
it  is  enacted,  '  That  no  order,  judgment,  record  of  conviction,  or  other 
■*  proceeditig  whatsoever,  concerning  any  prosecution  instituted  in  the 
'  said  Police  Court,  by  virtue  of  this  Act,  shall  be  quashed  or  vacated 
'  for  any  misn&mer  or  informality;  and  all  judgments  and  sentences 

*  pronounced  by  the  Judge  shall  be  final  and  conclusive,  and  not  sub- 

*  ject  to  suspension,  or  advocation,  or  appeal,  or  any  other  form  of  re- 
<  view,  or  stay  of  execution,  unless  on  the  ground  of  corruption,  malice, 

*  or  oppression  on  the  part  of  the  Judge,  or  of  such  deviations  in  point 

*  of  form  from  the  statutory  enactments  as  the  Court  of  review  shall 

*  think  took  place  wilfully,  or  of  incompetency,  including  defect  of 
'  jurisdiction  of  the  Judge,  and  which  suspension,  or  advocation,  or 
'  appeal,  or  review,  or  stay  of  execution,  must  be  presented  to  the 
'  High  Court  of  Justiciary  within  fourteen  days  after  the  date  of  the 

*  sentence  complained  of.'     Sect.  157, '  That  it  shall  be  lawful' for  the 

*  said  Superintendent  of  Police  and  other  officers  to  apprehend  and 
'  bring  before  the  Judge  all  such  beggars,  vagrants,  and  idle  poor  per- 
'  sons,  men,  women,  or  children  strolling  or  wandering,  or  seeking  re- 

*  lief,  or  found  lying  in  any  outhouse,  stair,  close,  or  area,  or  other 

*  place  within  the  said  limits,  and  it  shall  be  lawful  for  the  Judge  to 
'  direct  and  caiise  all  such  persons  as  he  may  not  at  the  time  convict 
'  of  begging  and  vagrancy,  as  herein-before  provided,  to  be  handed 
'  over  to  the  inspector  of  the  poor  or  other  official  of  the  parish  within 

*  which  such  persons  shall  have  been  found,  in  order  that  their  claim, 
'  as  paupers,  may  be  itivestigated  and  dis)i<ised  of  according  to  law.' 


332  CASES  BEFORE  THE  HIGH  COURT 

No.  54.        The  107th  section  of  the  Police  Act  shewed  in  what 

Bums  B.  .  ,        , 

Moxey.  cascs  revicw  was  excluded,  and  where  it  was  competent. 
High  Court.  One  of  these  cases  was  want  of  jurisdiction.  The  Police 
mo. '  Act  had  not  created  a  statutory  crime  of  vagrancy,  out 
Suspension,  of  specics  facti  which  the.  common  law  declared  inno- 
cent. This  petition  would  not  do  if  it  had  not  come  up 
to  the  common  law  offence  desipied  in  the  statute.  AH 
that  was  alleged  in  the  complaint  was,  that  he  conducted 
himself  as  a  vagrant,  by  being  found  in  the  house  men^ 
tioned.  Nothing  was  said  as  to  the  character  of  the 
house.  Section  157  of  the  act  threw  light  on  what  was 
meant  by  the  term  vagrant,  and  none  of  the  circum- 
stances mentioned  in  that  section  were  averred  against 
the  suspender  in  the  complaint. 

Pleaded  for  the  respondent — ^The  objection  was  merely 
want  of  specification  in  the  libel.  As  to  the  jurisdiction 
there  was  no  doubt,  nor  was  there  any  doubt  as  to  the 
competency  of  the  complaint.  The  fapt  that  the  suspen- 
der was  found  in  a  house  so  well  known  as  Jane  Brash's, 
was  quite  sufficient  to  justify  the  police  in  apprehending 
and  the  Judge  in  convicting  him. 

Lord  Ivory. — Jane  Brash's  house  is  not  a  nomen  juris 
for  vagrancy. 

Neaves. — Perhaps  the  libel  might  have  been  more 
specific,  but  the  house  was  so  well  known,  that  his  being 
found  in  it  was  quite  sufficient  to  constitute  the  crime  of 
vagrancy. 

Lord  Ivory. — ^The  vagrancy  here  averred  is  being 
found  in  a  house  idle. 

The  Lord  Justice-Clerk. — It  looks  as  if  Jane  Brash's 
house  was  taken  to  include  every  thing  in  the  157th  sec- 
tion of  the  act. 

Neaves — It  was  denied  that  he  was  a. broker,  or  that 
he  was  there  for  any  lawful  purpose,  and  so  the  Judge 
had  found. 

Lord  Moncreiff. — I  think  there  is  a  mistake  in  this 
complaint.  It  libels  nothing  here  but  being  found  in 
a  house.     Now,  a  gentlemen  may  be  found  in  a  house 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  333 

very  idle  indeed,  but  he  is  not  therefore  a  vagrant.    If    No.  oi. 
the  fact  be  as  stated,  that  this  house  was  of  such  a  noto-    Moxey. 


rious  description,  why  was  it  not  averred  ?  High  Court, 

Lord  Cockbuen. — I  demur  to  the  competency  of  this  isso. ' 
appeal.  It  was  competent  for  the  Police  Court  to  examine  Suspension. 
into  a  case  of  vagrancy.  The  answer  made  is,  that  this 
indictment  is  not  relevant.  But  are  we  to  review  the 
objections  to  the  relevancy  of  this  charge  in  the  Police 
Court  ?  I  do  not  think  the  defect  in  the  libel  is  any  good 
reason  for  appealing  the  case  to  us.  Besides,  I  do  not 
think  the  objection  itself  is  well  founded.  It  was  com- 
petent under  this  libel  to  prove  the  state  of  this  house. 
:  LoED  Wood. — I  see  no  difficulty  as  to  this  Court 
having  a  competency  of  review  in  this  case.  The  police 
have  only  jurisdiction  in  certain  cases.  Then,  if  this  be 
one  where  they  have  it  not,  it  must  be  competent  to  bring 
it  up  here.  If  the  charge,  taking  it  as  a  whole,  is  not  a 
police  offence,  then  there  is  no  jurisdiction  given  to  the 
Police  Court  by  the  act. 

As  to  the  second  point,  I  concur  with  Lord  Mon- 
creiff.  I  say  nothing  as  to  what  would  be  the  effect 
if  the  libel  had  stood  merely  on  the  words,  conducting 
himself  as  a  vagrant ;  but  the  specification  here  given  is 
being  found  idle  in  a  house.  Why,  every  man  may 
be,  and  is  so,  every  day  in  his  life.  We  have  nothing 
here  as  to  the  character  of  the  house. 

LoED  IvoEY. — I  concur  entirely  with  Lord  Wood. 

The  Lord  Justce-Clerk. — I  concur  in  the  view  that 
the  question  of  competency  here  does  involve  the  merits  ; 
for  if  there  is  no  statutory  charge  the  conviction  cannot 
stand,  and  I  abstain  from  giving  any  opinion  as  to  the  ge- 
neral charge  being  sufficient  or  not.  There  is  here  given 
a  specification  of  what  the  vagrancy  is ;  but  I  do  not  think 
there  is  any  sufficient  description  of  vagrancy,  for  his  being 
found  idle  merely  is  stated.  Therefore  it  would  be  enough, 
under  this  complaint,  that  when  the  police  officers  enter 
a  man's  house  he  is  found  idle.  Now,  that  would  be  vei-y 
alarming,  and  cannot  be  tolerated,  and  it  would  have  been 


334  CASES  BEFORE  THE  HIGH  COURT 

No.  Bi.    very  easy  to  have  altered  it ;  for  you  can  combine  the 
Moxey.    157th  Section,  and  make  out  the  character  of  the  house. 
High  Court.  This  suggests  to  me  the  great  expediency  of  having  the 
1 850. "   same  review  given  over  all  police  cases.   In  Glasgovr  every 
Suspension,  man  may  bring  any  thing  under  review.     Here  they  can- 
not.    Now,  why  should  we  not  have  the  same  review 
over  those  cases  in  the  Edinburgji  Police  Courts  that  we 
have  in  those  occurring  in  the  Sheriff  and  Justice  of  Peace 
Courts  ?  and,  indeed,  there  are  fewer  appeals  from  those 
places,  such  as  Glasgow,  where  the  Court  has  the  un- 
limited right  of  review,  than  from  those  like  Edinburgh, 
where  there  is  an  attempt  to  exclude  it.     And  the  rea- 
son is  plain.    It  is  just  because  there  is  greater  care  taken 
in  the  former  case  than  in  the  latter. 

The  Court  passed  the  Note  with  expenses. 


March  1 1 . 
1850. 


Present, 

The  Lord  Justice-Clehk, 

Lords  Mackenzie  and  Wood. 

Her  Majesty's  Advocate — Sol.  Gen.  Moncreiff—Deas  A.D. — 
J.  M.  Bell  A.D. 

AGAINST 

William  Duncan — Anderson — Giffsrd. 
Alexander  Gumming — Logan. 

Indictment — Relevancy — Forgery — Jurisdiction. — Held,  1st, 
That  it  was  a  relevant  charge  against  two  pannels  to  aver  that  they 
'  both  and  each,  or  one  or  other,'  acting  in  pnrsuance  of  an  unlaw- 
ful concert,  and  for  a  fraudulent  purpose,  adhibited  the  signature  of 
one  of  them  to  the  document ;  2d,  That,  under  the  circumstances, 
the  words  at  and  near  Edinburgh,  and  elsewhere,  was  not  too  vague 
a  specification  of  the  locus  delicti ;  and,  3d,  That,  in  respect  of  .the 
above  words  importing  the  commission  of  an  offence  in  Scotland, 
the  Jury  could  not  convict  one  of  the  pannels,  who  had  never  left 
England,  as  art  and  part  of  an  offence  committed  in  Scotland. 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  335 

William  Duncan,  practising  as  a  surgeon  at  Amble,    No.  bb. 
in  the  county  of    Northumberland,   and   Alexander  Dunoln"& 
Gumming,   practising  as  a  surgeon  and    druggist,   in  cum^ng' 
Broughton  Street,  Edinburgh,  were  charged  with  For-  HighCom-t. 
gery;  As  also,  Using  and  Uttering,  as  genuine,  a  False  ^^l^^'o.^'' 
and  Forged  Writing, .  knowing  the  same  to  be  false  and  "r^erf," 
forged ;  As  also,  with  Falsehood,  Fraud,  and  Wilful  Im-      *=• 
position  ;   As  also.  Conspiring  to   Commit  the  above 
crimes,  or  one  or  more  of  of  them  : 

In  so  far  as,  it  being  required  by  the  Eegulations  of  the  Royal 
College  of  Surgeons  of  Edinburgh,  in  force  in  or  about  the  year  1 844, 
that  every  candidate  for  a  diploma  from  that  college  should,  before  ob- 
taining such  diploma,  have  followed  a  certain  prescribed  course  of 
study,  and  should  have  laid  before  or  furnished  to  the  President  of  the 
said  College  a  tabular  statement  or  schedule  subscribed  by  the  said 
candidate,  exhibiting  the  full  extent  of  his  professional  education,  and 
a  separate  list  of  all  classes,  hospitals,  and  dispensaries  which  he  had 
attended  during  each  session  of  his  studies  respectively,  and  should 
thereupon  obtain  from  the  said  president  a  letter  or  authority  directing 
or  authorising  the  examinators  of  the  said  college  to  take  him  the  said 
candidate^ upon  trial,  and  should  thereafter  appear  before  the  examina- 
tors of  the  said  college  and  undergo  an  examination,  and  should  only 
be  entitled^to  receive  a  diploma  from  the  said  college  on  being  found 
by  the  said  examinators  to  be  duly  qualified  to  practise  surgery  and 
pharmacy ;  and  yon  the  said  William  Duncan  and  Alexander  Cum- 
ming  having  formed  and  concocted  a  false  and  fraudulent  scheme, 
machination,  and  design,  to  procure  a  diploma  from  the  said  Royal 
College  of  Surgeons  in  name  of  you  the  said  William  Duncan,  so  as  to 
enable  you  the  said  William  Duncan  to  hold  yourself  out  to  the  public 
as  having  been  found  duly  qualified  by  the  said  Royal  College  to 
practise  surgery  and  pharmacy,  without  you  the  said  William  Duncan 
actually  appearing  before  the  said  examinators,  or  undergoing  any  ext 
amination,  or  being  found  qualified  as  aforesaid,  you  the  said  William 
Duncan  and  Alexander  Cumming  did,  both  and  each,  or  one  or  other 
of  you,  some  time  or  times  in  or  about  the  months  of  October,  Novem- 
ber, and  December  1844,  or  in  or  about  one  or  more  of  these  months, 
the  particular  time  or  times  being  to  the  prosecutor  unknown,  at  or 
near  Amble  aforesaid,  and  at  or  near  Edinburgh,  or  at  or  near  one  or 
other  of  these  places,  or  at  some  time  or  times,  and  at  some  place  or 
places,  to  the  prosecutor  unknown,  wickedly  and  feloniously,  conspire, 
confederate,  and  agree,  that  you  the  said  Alexander  Cumming  should, 
falsely  and  fraudulently,  personate  and  assume  the  character  of  you 
the  said  William  Duncan,  and  should,  in  that  character,  apply  for  and 


336  CAaES  BEFORE  THE  HIGH  COURT 

No.  55.  obtain  a  diploma  from  the  said  Royal  College  of  Surgeons,  in  name  of 
D!l'ncan&  y°"  ^^^  ^^'"^  William  Duncan,  importing  that  you  the  said  William 
Alexander  Duncan  had  been  found  duly  qualified  to  practice  surgery  and  pbar- 
Cumming.  jj^^^y^  ^nd  should,  falsely  and  fraudulently,  represent  and  pretend  to 
High  Court,  the  office-bearers  and  examinators  and  others,  acting  for  or  on  behalf 
1850.  of  *li6  said  College,  or  to  some  of  them,  that  the  name  of  you  the  said 
~Z  77~  Alexander  Camming  was  William  Duncan,  and  that  you  the  said 
&c.  Alexander  Cumming  should,  under  the  name  of  William  Duncan, 
undergo  the  aforesaid  examination,  prescribed  by  the  foresaid  regula- 
tions, and  that  upon  you  the  said  Alexander  Cumming  obtaining  a 
diploma  as  aforesaid  from  the  said  Royal  College  of  Surgeons,  under 
the  name  of  William  Duncan,  the  same  should  be  delivered  to  you  the 
said  William  Duncan,  and  that  you  the  said  William  Duncan  should 
thereafter  use  and  act  upon  the  same,  as  in  all  respects  a  diploma  pro- 
perly and  lawfully  obtained  by  you  the  said  William  Duncan  :  And 
you  the  said  Alexander  Gumming  did  accordingly,  in  furtherance  and 
pursuance  of  the  object  and  purpose  of  the  said  conspiracy,  and  acting 
in  concert  with  the  said  William  Duncan,  and  in  order  to  carry  into 
effect  and  accomplish  the  object  and  purpose  of  the  said  conspiracy, 
some  time  betwixt  the  1st  day  of  October  and  the  5th  day  of  Decem- 
ber 1844,  the  particular  time  being  to  the  prosecutor  unknown,  pro- 
ceed from  Amble  aforesaid  to  Edinburgh,  and  clid,  in  or  near  Surgeons' 
Hall,  in  or  near  Edinburgh,  or  at  some  other  place  in  or  near  Edin- 
burgh to  the  prosecutor  unknown,  procure  or  obtain  from  the  conser- 
vator for  the  time  being  of  the  said  Royal  College,  or  from  some  other 
person  or  persons  acting  for  the  said  Royal  College,  to  the  prosecutor 
unknown,  a  printed  form  of  a  tabular  statement  or  schedule,  required 
to  be  presented  by  candidates  to  the  President  of  the  said  Royal  Col- 
lege as  aforesaid,  for  the  purpose  of  the  same  being  filled  up  and  pro- 
perly attested,  with  a  view  to  the  same  being  presented  to  the  said 
president,  in  terms  of  the  foresaid  regulations  :  And  you  the  said  Wil- 
liam Duncan  and  Alexander  Cumming  did,  both  and  each,  or  one  or 
other  of  you,  acting  in  concert  as  aforesaid,  time  and  place  last  above 
libelled,  or  at  some  other  time  and  place  in  or  near  Edinburgh,  to  the 
prosecutor  unknown,  wickedly  and  feloniously,  falsely  and  fraudu- 
lently, forge  and  adhibit,  or  cause  or  procure  to  be  forged  and  ad- 
hibited to  a  certificate  prefixed  to  the  tabular  statement  or  schedule  so 
procured  as  aforesaid,  in  the  following  or  some  similar  terms  :  '  I  here- 
'  by  certify  that  the  subjoined  summary  contains  a  full  and  accurate 
'  account  of  the  education  which  I  have  received,  commencing  session 
'  1 833,  as  I  have  more  particularly  specified  in  the  annexed  schedules, 
'  pages  2  and  3,'  the  words  or  subscription,  '  William  Duncan,'  intend- 
ing the  same  to  pass  for,  and  to  be  received  as,  the  genuine  subscrip- 
tion of  you  the  said  William  Duncan,  or  of  some  wholly  fictitious  per- 
son :  Farther,  time  and  placq  last  above  libelled,  or  at  some  other 
time  and  place  in  or  near  Edinburgh  to  the  prosecutor  unknown,  you 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  337 

the  said  William  Duncan  and  Alexander  Gumming  did,  both  and  each,     No.  55. 

or  one  or  other  of  you,  acting  in  concert  as  aforesaid,  wickedly  and  ^        °V 

feloniously,  falsely  and  fraudulently,  use  and  utter,  as  genuine,  the  Alexander 
said  false  and  forged  tabular  statement  or  schedule  and  certificate,  or  Cumming. 

one  or  other  of  them,  having  the  said  false  and  forged  subscription  High  Court, 
thereat,  you,  both  and  each,  or  one  or  other  of  you,  knowing  the  same      ^850 


to  be  false  and  forged,  by  then  and  there  delivering  the  same,  or  caus- 
ing the  same  to  be  delivered,  as  a  genuine  document,  to  Dr  James  &c. 
Simson,  the  then  President  of  the  said  Eoyal  College  of  Surgeons,  or 
to  some  other  office-bearer  of  the  said  college  to  the  prosecutor  un- 
known ;  and  you  did,  both  and  each,  or  one  or  other  of  you,  acting  in 
concert  as  aforesaid,  then  and  there,  wickedly,  wilfully,  and  feloniously, 
falsely  and  fraudulently,  represent  and  pretend  to  the  said  president  or 
other  office-bearer  of  the  said  college,  that  you  the  said  Alexander 
Gumming  was  the  William  Duncan  therein  referred  to,  and  that  the 
said  signature  '  William  Duncan'  at  the  said  certificate,  was  the  ge- 
nuine subscription  of  you  the  said  William  Duncan  ;  and  you  the  said 
William  Duncan  and  Alexander  Gumming  did,  farther,  both  and  each, 
or  one  or^other  of  you,  acting  in  concert  as  aforesaid,  then  and  there 
deliver  to  the  said  president  or  other  office-bearer  of  the  said  college, 
the  tickets  and  certificates  granted  to  you  the  said  William  Duncan, 
and  referred  to  and  founded  on  in  the  said  tabular  statement  or 
schedule,  as  if  the  same  applied  to  you  the  said  Alexander  Gumming, 
and  on  the  footing  that  the  name  of  you  the  said  Alexander  Gumming 
was  William -Duncan,  and  this  you  did,  to  verify  or  confirm  the  state- 
ments or  entries  contained  in  the  said  tabular  statement  or  schedule ; 
by  all  which,  or  part  thereof,  the  said  president  and  other  office- 
bearers of  the  said  Eoyal  Gollege  of  Surgeons,  or  one  or  more  of  them, 
were  cozened,  cheated,  deceived,  and  imposed  upon,  by  you  the  said 
William  Duncan  and  Alexander  Gumming,  or  by  one  or  other  of  you, 
acting  in  concert  as  aforesaid  ;  and  the  said  president  having  directed 
or  authorised  an  examination  of  you  the  said  Alexander  Gumming,  in 
the  belief  that  you  were  the  William  Duncan  referred  to  in  the  said 
tabular  statement  or  schedule,  and  in  the  said  certificate  to  be  taken 
by  the  examinators  of  the  said  Royal  Gollege,  you  the  said  Alexander 
Gumming,  acting  in  concert  as  aforesaid,  did  attend  for  examination 
within  or  near  Surgeons'  Hall  aforesaid,  on  or  about  the  4th  day  of 
December  1844,  before  and  in  presence  of  Doctor  John  M'Farlane, 
now  or  lately  residing  in  or  near  Charlotte  Square,  in  or  near  Edin- 
burgh, Doctor  Richard  Huie,  now  or  lately  residing  in  or  near  George 
Square,  in  or  near  Edinburgh,  Doctor  Francis  Farquharson,  then  re- 
siding in  Edinburgh,  and  now  or  lately  residing  at  or  near  Finzean,  in 
Aberdeenshire,  Doctor  Robert  Omond,  now  or  lately  residing  in  or 
near  Charlotte  Square  aforesaid,  and  others,  or  one  or  more  of  them, 
examinators  appointed  by  the  said  Royal  Gollege  of  Surgeons ;  and 
you  the  said  Alexander  Gumming,  acting  in  concert  as  aforesaid,  did. 


338  CASES  BEFORE  THE  HIGH  COUET 

No.  55.  then  and  there,  falsely,  fraudulently,  and  wilfully,  represent  yourself 
DTnran'&  *°  ^^^  ^^^^  examinators,  or  to  some  of  them,  to  be  the  said  "William 
Alexander  Duncan,  or  falsely,  fraudulently,  and  wilfully,  lead  or  induce  them  to- 
Gumming.  bgUgye  you  were  Wiyiam  Duncan,  and  the  person  mentioned  and  re- 
High  Court,  ferred  to  in  the  foresaid  certificate  and  tabular  statement  or  sch'edule 
1850.      above  libelled  :  And  the  said  examinators  did,  consequently,  time  and 

— place  last  above  libelled,  examine  you  the  said  Alexander  Cumming, 

°&c.  '  in  terms  of  the  said  regulations,  in  the  belief  that  you  were  the  Wil- 
liam Duncan  referred  to  in  the  foresaid  certificate  and  tabular  state- 
ment or  schedule,  and  found  you  to  be  duly  qualified  to  practise  sur- 
gery and  pharmacy ;  and  did  deliver  or  cause  or  authorize  to  be  de- 
livered to  you  the  said  Alexander  Cumming,  a  diploma  in  the  usual 
form  subscribed  by  the  said  examinators  and  their  preses,  or  by  some 
of  them,  bearing  or  importing  that  you  the  said  William  Duncan,  or  at 
least  a  person  of  the  name  of  William  Duncan,  had  been  examined  and 
found  duly  qualified  to  practise  surgery  and  pharmacy ;  and  you  the 
said  Alexander  Cumming  did  immediately,  or  soon  thereafter,  deliver  the 
said  diploma  to  you  the  said  William  Duncan  for  the  purpose  of  being 
acted  on  and  used  by  you  the  said  William  Duncan  as  a  diploma  in 
your  favour ;  and  you  the  said  William  Duncan  did  accept  and  receive 
from  the  said  Alexander  Cumming  the  said  diploma,  in  the  full  know- 
ledge of  the  manner  in  which  the  same  had  been  obtained  by  the  said 
Alexander  Cumming  as  aforesaid,  and  did,  in  or  near  Edinburgh  and 
elsewhere,  act  upon,  exhibit,  and  use  the  same  as  a  diploma,  properly 
and  lawfully  obtained  by  and  in  favour  of  you  the  said  William  Dun- 
can ;  by  all  which,  or  part  thereof,  the  said  examinators  and  other 
oflice-bearers  of  the  said  Royal  College  of  Surgeons,  or  one  or  more  of 
them,  were  cozened,  cheated,  deceived,  and  imposed  upon,  by  you  the 
said  William  Duncan  and  Alexander  Cumming,  or  by  one  or  other  of 
you  ;  and  all  this,  or  part  thereof,  you  the  said  William  Duncan  and 
Alexander  Cumming  did,  wickedly  and  feloniously,  in  furtherance  and 
pursuance  of  the  foresaid  conspiracy ;  and  the  object,  purpose,  and  de- 
sign, of  the  said  conspiracy  were  thereby  accomplished  and  carried  into 
efiect,  or  partially  accomplished  and  carried  into  effect,  by  you  the 
said  William  Z^'Rcan  and  Alexander  Cumming. 

GiFFORD  objected  to  the  relevancy  of  the  indictment,  in 
so  far  as  it  charged  forgery.  The  conspiracy  set  forth  was, 
that  the  prisoner  Duncan  should,  by  means  of  false  repre- 
sentations, obtain  a  diploma,  and  the  mode  in  which  the 
conspiracy  was  carried  out,  was  alleged  to  be  that  one  or 
other  of  the  pannels  acting  in  concert,  adhibited  the  word 
or  subscription  '  William  Duncan'  to  the  document  li- 
belled ;  it  was  thus  left  uncertain  whether  the  subscription 


AND  CIRCUIT  COURTS  OP  JUSTICIARY.  339 

of  Duncan  was  his  genuine  signature  ;  and  farther,  even    ^?,-,.^^- 
holding  that  the  document  had  been  signed  by  Cum-  Duncan  & 
ming  in  Duncan's  name,  yet,  as  the  indictment  alleged  cumming. 
them  to  be  acting  in  concert,  it  must  be  presumed  that  High  Court. 
he  had  Duncan's  authority  for  so  doing.     All  that  was  ^^Ysso.^^' 
alleged   therefore,  amounted  to  falsehood,  fraud,  and  "ForgeryT 
wilful  imposition  libelled,  and   not    to    forgery.     The      *"• 
indictment,    moreover,   was   too    vague   both  in  time 
and  place,  all  that  was  alleged  was  that  the  prisoner 
Cumming    '  did,   in  or    near    Edinburgh,    and   else- 
•  where,  act  upon,  exhibit,  and  use  the  same  as  a  di- 
'  ploma,'  &c.      This  left  it  uncertain  whether  or  not 
the    prosecutor   intended    to   found    on  the    prisoner 
Duncan  having  used  the  diploma  in  England.  If  so,  there 
ought  to  be  a  more  specific  statement,  and  if  not,  he 
objected  to  the  jurisdiction  of  the  Court,  inasmuch  as 
he  had  never  been  in  Scotland. 

Deas — ^The  argument  was,  that  no  one  could  forge  his 
own  signature ;  that  doctrine  had  been  overruled  in  diffe- 
rent cases  where  the  object  for  which  the  signature  was  at- 
tached, was  to  deceive  the  person  to  whom  the  docutnent 
was  uttered,  as  to  whom  it  was  intended  to  denote.  Here 
the  object  was  alleged  to  be  fraudulent,  and  that  the 
fraud  was  carried  into  effect,  and  that  deception  was  ac- 
tually practised  thereby,  and  the  Crown  undertook  to 
prove  this,  and  that  all  that  took  place  was  done  in  con- 
cert, which  made  it  equally  forgery  whether  Duncan 
signed  the  document  or  Cumming. 

Anderson. — The  question  was  not  whether  the  crime 
of  forgery  had  been  committed,  but  whether  that  crime 
was  sufficiently  charged  in  the  indictment ;  it  might  be 
r6ad  as  charging  Duncan  individually  with  using  his 
own  subscription. 

Lord  Wood. — If  Cumming  forged  the  document,  then 
his  crime  is  complete ;  and  surely  Duncan  might  be  art 
and  part  in  so  doing. 

Anderson. — If  the  indictment  had  been  so  laid,  the 
objection  would  not  have  arisen ;  but  it  is  presently 


340  CASES  BEFORE  THE  HIGH  COURT 

No.  55.    charging  both  and  each  with  adding  and  adhibiting  the 
Duncan  &  Subscription,  and  it  was  quite  consistent  therewith  that 

Alexander   ii         •  j.  •„ 

Gumming,  the  Signature  was  genuine. 

High  Court.     The  words  '  elsewhere'  were  also  too  vague,  looking 
^um!^'  *o  tbe  designation  of  the  prisoner  Duncan  as  set  forth 
Forgery,  iQ  the  indictment,  and  the  nature  of  the  charge. 
*"■  The  Lord  JusTicE-CLiiRK. — They  do  not  charge  prac- 

tising in  England  as  a  crime,  here  it  can  only  be  used  as 
evidence  to  the  conspiracy  for  obtaining  a  diploma ;  the 
finding  of  stolen  goods  in  the  hands  of  a  man  in  Cal- 
cutta, may  be  good  evidence  against  him  in  respect  of  a 
theft  said  to  be  committed  in  Edinburgh. 

Lord  Mackenzie. — I  cannot  hold  this  document  not 
to  be  forgery ;  it  is  said  that  if  Duncan  did  not  sign  him- 
self, that  yet  as  the  prisoners  are  alleged  to  have  acted  in 
concert,  it  must  be  presumed  that  Gumming  had  his 
authority  to  sign  his  name,  but  that  will  not  in  all  cases 
be  enough  to  protect  the  parties  from  the  crime  of  for- 
gery. Take  the  case  of  one  man  authorising  the  other 
to  sign  his  name  to  drafts  for  money,  under  an  agree- 
ment that  as  soon  as  he  shall  have  got  the  same  he  shall 
abscond,  and  that  thereafter  the  party  whose  name  has 
been  used  should  plead  forgery  as  a  protection  against 
honouring  the  drafts,  would  not  this  be  forgery  by  both 
parties  ?  I  cannot  doubt  that  it  would.  So  in  this  case 
the  charge  of  fabrication  and  conspiracy  runs  through- 
out the  whole,  and  whatever  difficulty  there  might  be  in 
reducing  to  rule  the  definitions  which  have  been  usually 
given  for  forgery,  that  only  shews  that  the  ingenuity  of  bad 
men  is  greater  than  that  of  lawyers.  I  would,  however, 
have  had  more  difficulty  if  it  had  been  expressly  alleged 
that  the  signature  was  that  of  Duncan. 

Lord  Wood. — If  it  had  been  necessary  to  give  an 
opinion,  as  to  whether  there  could  be  forgery  in  Duncan 
himself  signing  the  document,  I  should  have  had  some 
hesitation,  but  the  point  has  not  arrived. 

The  Lord  Justice-Clerk. — No  doubt  we  have  only 
to  consider  Mr  Anderson's  objection,  and  I  have  no 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  341 

doubt  that  on  the  indictment  as  framed  he  will  be  dis-    N"-  ^^■ 

•  William 

charged  of  that  charge.     That  Gumming  was  to  go  to  Duncan  & 
Edinburgh  and  present  the  document  as  the  genuine  sub-  cumming"] 
scription  of  himself,  and  thereby  obtain  a  diploma  in  the  High  court. 
name  of  William  Duncan,  is  clearly  charged,  but  whether    'I'aso. 
it  would  make  any  difference  that  Duncan  himself  signed  Forgery, 
the  document  so  intended  to  be  used,  and  actually  used  for      *"'' 
such  a  purpose,  I  doubt,  but  I  reserve  my  opinion  thereon. 

It  appeared  in  evidence  that  the  prisoner  Gumming 
on  the  4th  of  December  1844,  passed  in  the  name  of 
Duncan  an  examination  required  by  the  GoUege  of  Sur- 
geons, and  thereafter  received  a  diploma  also  in  his 
name,  under  which  the  prisoner  Duncan  practised  in 
England.  There  was  no  evidence  that  Duncan  had  ever 
been  in  Scotland,  either  at  the  time  of  getting  the  di- 
ploma, or  afterwards,  until  brought  for  trial. 

Anderson  thereupon  objected,  that  as  the  prosecutor 
had  not  proved  that  Duncan  had  done  anything  in  Scot- 
land, there  was  no  case  for  the  Jury.  The  case  laid 
was  that  of  conspiracy, — had  anything  been  proved  with 
reference  to  that  in  Scotland  ?  The  conspiracy,  if  made, 
was  in  England.  The  forgery  again,  if  perpetrated  was 
here.  Duncan  was  not  here  on  any  one  occasion.  Sup- 
pose two  or  three  men  conspired  in  England  to  commit 
a  theft  in  Scotland.  One  remained  in  England ;  two 
came  to  Scotland,  and  were  caught  in  the  act.  Could 
it  be  said  that  this  Gourt  had  jurisdiction  to  try  the 
third,  though  he  was  never  was  out  of  London  ?  If  it 
could  be  shewn  that  this  was  a  crime  in  continuum,  part 
perpetrated  in  England,  part  in  Scotland,  the  case 
might  be  different,  but  they  had  not  shown  anything  of 
the  sort. 

Solicitoe-Geneeal. — It  was  not  an  objection  to  the 
trial,  in  so  far  that  the  facts  proved  against  Duncan  were 
committed  in  England  wholly,  they  having  been  com- 
mitted by  him  with  reference  to  a  crime  perpetrated  in 
Scotland,  in  which  we  say  he  was  art  and  part.  The 
objection  went  to  this,  that  the  Gourt  could  not  try  the 


342  CASES  BEFORE  THE  HIGH  COCRT 

w°i)fam   question  whether  he  was  art  and  part ;  it  might  be  that 
Si^xlnto  ^*  ^^^  ^'^^  established  in  fact  that  he  was  guilty,  but 
Camming,  had  uot  the  Court  jurisdiction  to  declare  him  innocent. 
High  Court.  The  whole  of  that  would  come  to  this,  that  whenever  a 
I860.  "  crime  was  committed  in  Scotland  in  concert  with  a 
Forgery,  party  residing  in  England,  that  you  could  not  try  the 
party  here  because  of  his  residence  there ;  and  you  could 
not  try  him  there,  because  the  crime  was  committed 
here.     Suppose  that  rebellion  had  started  in  England, 
of  which  the  first  outbreak  was.  to  be  in  Scotland,  could 
I  not  try  all  the  parties  concerned  in  the  plot  even  al- 
though some  of  them  had  not  left  England  ? 

The  Lord  Justice-Clerk. — The  case  that  you  put  is 
peculiar,  because  that  amounts  to  high  treason  •,  but  in 
a  case  of  sedition  like  that  of  Horn  Tooke,  could  you  try 
it  here  ? 

The  Solicitor-General. — The  Court  would  have 
jurisdiction  to  try  it.  Take  the  case  of  the  Cotton- 
spinners  ; — receipts  were  found  on  them  from  parties  in 
England  for  money,  which  had  been  given  to  induce  the 
commission  of  th.e  offence.  There  was  no  authority  to 
shew  that  they  could  not  have  been  tried  here,  (Hume, 
vol.  ii.  p.  63).  It  did  not  signify  how  the  crime  or  main 
act  was  committed,  the  whole  question  was,  whether  the 
Court  was  competent  to  try  the  crime  ?  If  it  was  a  com- 
petent jurisdiction  to  try  the  crime,  it  necessarily  fol- 
lowed that  the  Court  had  jurisdiction  to  try  the  crime 
of  art  and  part.  Suppose  the  Jury  found  it  a  fact,  that 
Duncan  was  art  and  part  in  an  offence  committed  here, 
had  not  the  Court  jurisdiction  to  punish  ? 

The  Lord  Justice-Clerk. — You  put  the  trial  on  this 
indictment,  that  the  diploma  was  exhibited  here,  or  else- 
where. 

The  Solicitor-General. — The  Crown  was  entitled 
to  prove  that,  in  order  to  shew  imposition  on  the 
College  here,— could  he  have  been  tried  in  England 
for  fraud  on  the  College  here  ?  surely  not ;  for  if  it 
was  a  crime  at  all,  it  was  committed  here.     The  result 


AND  CIRCUIT  COURTS  OF  JUSTICIARY.  343 

of  holding  that  a  party  in  England  who  was  art  and  part  ^?^j'^^ 
in  such  an  imposition  would  be,  that  if  he  could  not  be  Duncan  & 
tried  here,  he  could  not  be  tried  anywhere.  Gumming. 

Anderson. — The  case  was  not  one  depending  merely  High  Court. 
on  proof  of  art  and  part,  but  depended  on  a  separate     igjo. 
charge  of  conspiracy,  which   was  libelled  as  a  separate  Forgery, 
act.      Suppose  the  words,  '  at  or  near  Edinburgh,  or        "" 

*  other  place  "or  places  to  the  prosecutor  unknown,'  were 
struck  out  of  the  indictment,  and  it  had  stood,  '  at  or 

*  near  Amble  aforesaid,  conspired,  confederated,'  &c., 
could  there  be  a  doubt  that  that  was  an  English  crime, — 
that  was  the  present  case  as  it  came  out  in  proof,  for  all 
that  took  place  subsequently,  which  was  charged  against 
Duncan,  referred  back  to  the  conspiracy,  and  was  not 
libelled  independently  as  art  and  part  of  the  actual  im- 
position ;  consequently,  the  crime  alleged  was  one  cog- 
nizable in  the  English  courts,  and  if  so,  there  was  no 
jurisdiction  here. 

The  Lord  Justice-Clerk. — ^This  discussion  has  raised 
a  question  as  large  and  important  in  principle  as  can  be 
conceived,  and  it  would  be  premature  were  we  obliged 
now  to  decide  so  general  a  point.  But  we  do  not  think 
this  indictment  framed  so  as  to  cover  the  case  against 
Duncan,  and  the  occurrence  of  the  case  which  has  occa- 
sioned the  discussion,  is  matter  of  surprise,  because  it  is 
stated  '  you  Duncan  did,  in  or  near  Edinburgh,  act  on.' 
The  whole  of  this  indictment  proceeds  first,  with  an  al- 
legation of  conspiracy.  I  do  not  mean  that  this  is  the 
indictment,  or  the  whole  of  it.  But  there  is  an  aver- 
ment of  conspiracy  at  or  near  Amble,  It  would  have 
been  easy  to  have  framed  an  indictment,  setting  forth 
that  Duncan  furnished  Gumming  with  the  necessary 
documents,  and  Gumming,  in  possession  of  these  for  his 
behoof,  and  in  concert,  did  so  and  so,  and  having  received 
the  diploma,  com^mitted  the  fraud  you  arranged  he 
should  perpetrate.  "We  abstain  from  saying  whether 
that  would  have  been  relevant.  But  the  indictment, 
after  stating  that  your  acting  in  concert  did  proceed 

z 


344  CASES  BEFORE  THE  HIGH  COURT 

No.  55.    from  Amble  to  Edinburgh,  goes  on  to  say, — you  two,  time 
Duncan  &  and  pkcc  kst  above  libelled,  did  forge  and  adhibit,  and 
Gumming'  then  you  did  use  and  utter  as  genuine.   So  that  the  forgery 
High  Court,  and  uttering  is  stated  as  in  Scotland,  and  you  did  proceed 
^7s&o!^'  to  represent  to  the  President  of  the  College  that  Gumming 
Forgery,  was  Duucan  ;  then  you  or  one  or  other  did  present  cer- 
*"■      tiiicates,  so  that  what  is  done  is  said  to  be  done  by  both 
or  one  or  other  in  Scotland,  and  not  by  me  as  the  agent 
of  the  other.     And  then,  at  the  close,  it  is  declared, 
'  which  was  delivered  to  you  the  said  William  Duncan, 
'  and  you  did  use,'  &c.,  from  all  which  it  would  have 
been  impossible  to  suppose  that  William  Duncan  re- 
mained in  England,  and  never  came  to  Scotland.     The 
prosecutor  ought  always  to  frame  his  indictment  con- 
sistently with  the  case  he  means  to  prove ;  and  if  a  dif- 
ferent case  was  to  be  tried,  the  indictment  should  have 
raised  it. 

Lord  Mackenzie. — I  concur  on  the  special  ground 
on  which  this  judgment  is  viewed  by  your  Lordship, 
When  the  objection  was  first  stated  by  Mr  Anderson,  I 
thought  it  unimportant,  or  doubtful.  I  took  the  view  that 
the  crime  was  committed  in  Scotland,  on  employment 
by  a  person  in  England.  Suppose  a  man  in  England 
hires  an  assassin  in  Scotland  to  shoot  another,  but  never 
comes  here  himself,  and  the  man  shoots  the  person, 
would  that  not  afford  jurisdiction  ?  The  view  your 
Lordship  takes^  makes  it  clear.  The  indictment  states 
that  both  parties  were  in  Scotland ;  the  prosecutor  is 
bound  to  prove  this, — ^he  has  not  done  it.  I  agree  in 
this  view,  and  reserve  the  general  question. 
LoED  Wood  concurred. 

The  Jury  found  the  pannel  Gumming  guilty  as  libelled, 
and  Duncan  not  guilty. 

In  respect  of  which  verdict  of  assize,  the  said  Alex- 
ander Gumming  was  sentenced  to  imprisonment  for  the 
space  of  twelve  months,  and  the  said  William  Duncan 
was  assoilzied  simpliciter.  '■ 


AND  CIRCUIT  COURTS  OF  JUSTICIA  RY.  345 

NORTH   CIRCUIT. 

INVERNESS. 

Spring  1850.  April  19. 

Jud^fe — The  Lord  Justice-Clekk. 

William  Welsh,  Appellant — Millar. 

AGAINST 

J.  Macphbrson,  Respondent — J.  M.  Bell. 

Police  Jurisdiction. — Held  that  a  Police  Magistrate  has  no  jurisdic- 
tion to  try  an  alleged  offence,  except  iipon  a  regular  complaint. 

This  was  an  appeal  against  a  sentence  pronounced  in  No.  se. 
the  Police  Court  of  Inverness  under  the  following  cir-  Macpher- 
cumstances : —  ^°°' 

The  appellant  had  sold  to  a  flesher  in  Inverness  a  ApriTig!* 

young  Ayrshire  bull,  which  had  died  at  his  farm.    The ^^^^' 

flesher  afterwards  cut  up  the  carcase,  and  portions  of  it  ^^^^  * 
were  exposed  to  sa.le  at  his  stall.  On  the  allegation  that 
the  meat  was  diseased,  and  unfit  for  human  food,  the 
Procurator-fiscal  presented  a  complaint  against  the 
flesher  in  the  Police  Court,  and,  upon  that  complaint, 
the  flesher  was  cited  to  appear  and  answer  to  the  charge. 
A  warrant  was  granted  on  the  complaint  in  common 
form  to  cite  witnesses ;  and  in  virtue  thereof  the  appellant 
was  cited  to  appear  as  a  witness  at  the  trial  of  the  case. 

The  appellant  accordingly  appeared  under  this  cita- 
tion ;  but,  instead  of  being  dealt  with  as  a  witness,  he 
was  arraigned  at  the  bar  as  an  ofifender  along  with  the 
flesher. 

The  appellant  objected  to  this  course  of  procedure, 
upon  which  an  offer  of  delay  was  made,  but  refused. 

After  evidence  had  been  led,  both  the  appellant  and 
the  flesher  were  found  guilty  of  exposing  unwholesome 
meat  for  sale,  and  the  appellant  was  fined  three  guineas. 


346  CASES  BEFORE  THE  HIGH  COURT 

No-S6.        Against  this